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Deciding on Guardianship
It is hard to see your loved ones become incapacitated or to see that they are losing their ability to live independently. Establishing a guardianship may be in their best interest, but it is not a decision that should be made lightly. Guardianships are commonly sought to care for a family member who either does not want the responsibility of dealing with finances or who is not competent to handle these matters. As a guardian, you will take responsibility for the health and well-being of your ward, and will be called upon by the courts to make an annual accounting for all financial decisions made on their behalf.
There are four primary types of guardianship in Florida:
- Voluntary guardianship: This type of guardianship is one in which the person being protected (legally referred to as the ward) is determined to be competent by a medical doctor.
- Involuntary guardianship: This type of guardianship is one in which the ward is determined to be incompetent by a three-member team that includes a medical doctor, a case worker and a lay person.
- Guardianship of a minor child: This type of guardianship is used to manage more than $20,000 in assets from an inheritance, life insurance policy or personal injury lawsuit. There will be a final accounting on the child's 18th birthday of the assets that will then be turned over to the child upon the child turning eighteen years of age.
- Permanent guardianship: The type of guardianship involves either a relative or non-relative caregiver serving in a parental role of a child in a dependency case until that child reaches the age of 18.
Other guardian types include:
- Limited guardianship: powers are limited because the ward can make some, but not all, decisions for himself
- Plenary guardianship: guardian has broad power to make all decisions for a ward’s personal care and finances
- Temporary guardianship: used for emergencies and someone immediate need. The guardian’s role is limited to a short time, such as 60 days, depending on state law
- Successor guardianship: this is the replacement guardian if someone resigns or can’t continue serving due to death or illness
- Standby guardianship: allows a court to provide a backup guardian, so there’s no gap in caring for a ward’s needs
- Testamentary guardianship: a guardian can name a successor in his or her will, say to care for an adult disabled child. The court needs to approve the successor, but usually follows the will unless it finds the nominee isn’t fit to serve
- Short-term guardianship: the law may allow a guardian to name an alternate guardian to fill in for him for a short time. Court approval isn’t needed, and covers temporary situations where the guardian can’t serve
If you are considering becoming the guardian of a parent or other elderly relative, or that of a minor child, consider speaking to a guardianship attorney about these matters and the fiduciary duties that come along with it. To arrange a consultation, call the James Turner Law Firm Milton, Florida, at 850.983.0725. We guide families through the guardianship process in Santa Rosa County and Escambia County in the Florida panhandle.
Petitioning the Court
Because obtaining guardianship is a legal process, a lawyer can help you petition the court by advising you on preparing documentation regarding, among other things, legal incapacity. Often, the most difficult part of petitioning the court is telling your parent or elderly relative what you are planning to do. Objections to the action are not uncommon. An involuntary guardianship usually takes several weeks to obtain. A voluntary guardianship can be obtained more quickly.
The Hearing and Appointing a Guardian
The court considers the petition at a hearing, and then decides if the person has an incapacity and needs a guardian, what the specific needs are and appoints a guardian. At the hearing, the court carefully assesses the petition and evidence, such as the medical forms and reports on the ward’s condition and needs. Issues of incapacity aren’t taken lightly.
If the court finds incapacity, and the scope of the ward’s needs, it then decides whether the person seeking the role or nominated as guardian is qualified. Generally, a guardian must be an adult, at least 18 years old, and be competent himself. State law may exclude those who have criminal records or aren’t US citizens.
Usual guardian candidates are the ward’s close family members or friends. Professional guardians and entities, such as a corporation can serve as guardians, too. State government provides public guardians if no one else can serve.
Courts give weight to your wishes if you’ve nominated someone as guardian in a durable power of attorney, and to candidates who are close to you. Courts recognize those close to you often know your wishes and preferences best, and will take the best care of you and your affairs. Co-guardians can be named, for example a spouse and an adult child or your adult children.
The person named as a guardian must file an accounting with the court at least once a year to show how the ward has been cared for and what has been done with the person's assets (money). If the ward is an adult, he or she must have an annual physical and psychological evaluation and an annual plan filed with the court.
If the ward is a minor child, there will be a final accounting on the child's 18th birthday of the assets that will then be turned over to the child upon the child turning eighteen years of age.
Copyright 2015. James Turner Law Firm, LLC. The Milton, Florida, office of The James Turner Law Firm, LLC, serves clients throughout Escambia and Santa Rosa Counties, including Pensacola, Bellview, Gonzalez, Century, Pace, Gulf Breeze, Milton, Cantonment, Molino, Perdido Key, Walnut Hill, Bagdad, Navarre, Fort Walton Beach and Pensacola Beach; counties including Santa Rosa County and Escambia County; as well as Eglin Air Force Base, Whiting Field and NAS Pensacola (Naval Air Station).