Estate planning is an important process for anyone who wants to be able to control where his or her assets will go when the person eventually passes away. Sometimes, however, some people may need some assistance handling their affairs before they die. Guardianship is a legal tool in which a person is appointed to serve as representative of another person who lacks the capacity to act on his or her own behalf, whether it’s because of conditions like Alzheimer’s and dementia or for a minor child who is considered to lack that capacity under the law.
Types of Guardians
There are two kinds of guardians under Florida law: A guardian of the property and a guardian of the person.
A guardian of the property has the primary role of overseeing the incapacitated person’s (ward’s) assets and other property. That means gathering all of that property and creating an inventory so that the guardian understand what the ward has. It also means ensuring that all taxes and expenses are paid on that property. The guardian can take some of those actions without court approval. The guardian needs a judge’s OK including performing contracts, or borrowing money using the assets as a security.
A guardian of the person is generally meant to protect and assert the ward’s personal rights. That includes pursuing lawsuits and other legal actions, applying for government benefits, making decisions about medical and mental health treatment and deciding where to live. The guardian has to get court approval before doing things like committing the ward to an institution or facility, divorcing a spouse and terminating parental rights.
A person is considered incapacitated if he or she lacks the ability to manage some or all of his or her property or to “meet essential requirements for health or safety.” Any adult can ask that a court consider whether another person is incapacitated by filing a petition in the county in which the allegedly incapacitated person lives.
An examining committee that consists of three members—including at least one doctor and others considered experts based on their training—then examines the person individually and submits reports to the court. A judge then holds a hearing, during which the reports are considered and the allegedly incapacitated person and other witnesses may be called to testify. The burden is on the person who filed the petition to prove incapacity.
Contact a Miami Guardianship Lawyer at Hoffman & Hoffman P.A. Today
If you are considering seeking a guardian or filing an incapacity petition in South Florida, it’s important to seek the counsel of a seasoned Miami guardianship lawyer. An attorney guide you through the legal process, ensuring that you understand your rights and options every step of the way.
Hoffman & Hoffman is a South Florida estate planning law firm whose attorneys help people manage their assets and decide how property will be distributed in the event of their death. We are pleased to represent clients throughout South Florida, including in Ft. Lauderdale, West Palm Beach and Coconut Grove. Contact us to speak with an attorney today.