Getting older is no fun. At what point does one lose their legal rights?

1. What is a guardianship?

A guardianship is a way that the court system can protect the rights of individuals who are determined to be incapacitated.  When a guardianship is requested, the court will appoint a guardian for the individual if they are determined to be incapacitated. The guardian is given authority to act on behalf of the individual.  The person who is determined to be incapacitated is called a ward. 

Guardianships can be either limited or plenary.  A limited guardianship means that the individual retains some of their rights while their guardian takes over other rights.  For example, someone may retain the right to consent to medical treatment but their guardian will take over any legal matters related to their property.  On the other hand, if the guardianship is a plenary guardianship, the guardian is given complete authority to act for the ward and on the ward’s behalf.  

In Florida, a guardian can be voluntary or involuntary.  If the guardianship is voluntary, this means that the individual has consented to the guardianship.  A voluntary guardianship is established when an individual is not mentally incapacitated but for some other reason, such as age or physical infirmity, they are incapable of managing their estate.  Unlike an involuntary guardianship, when a voluntary guardianship is requested, the court requires a certification from a licensed physician that the ward is not mentally incapacitated. For more information about voluntary guardianships, please read Florida Statutes section 744.341.  An involuntary guardianship is when someone other than the incapacitated person is requesting the guardianship. 

2. How to determine incapacity and appoint a guardian

In order to ask the court to appoint a guardian, a Petition to Determine Incapacity must be filed.  This petition includes information about the adult petitioning the court and why they believe that the individual is incapacitated.  The court will then appoint an attorney for the individual on whose behalf the guardianship is sought if they do not have an attorney.  This attorney cannot later serve as the attorney for the guardian.    

After the petition is filed with the court, the Court will select three individuals to serve on a committee.  The committee is responsible for the assessment of the incapacity of the individual believed to be incapacitated.  This committee is comprised of a psychiatrist or other physician and the other members of the committee are required to have knowledge and experience to assess incapacity.  The committee will conduct a comprehensive exam of the individual including a physical exam, a mental health exam, and a functional assessment. 

Following the comprehensive exam, the committee members each file a report detailing their assessment of the individual.  A copy of this report is provided to the individual and their attorney.  If two or more members of the committee determine that the individual is not incapacitated, the Petition to Determine Incapacity is dismissed.  On the other hand, if the committee determines by a majority that the individual is incapacitated, there is an adjudicatory hearing where the incapacity must be established.

If it is determined that the individual is incapacitated, the judge will enter an order determining incapacity.  The order includes the determination of the nature and scope of the incapacity, the areas where they lack the capacity to make decisions about care or treatment, the legal disabilities, and the specific rights they are unable to exercise.  See, Fla. Stat. §744.331(6)(a)(1).  When the judge enters the order, this is the determination of incapacity and the individual becomes a ward. 

3. How does a guardianship affect the ward’s rights?

Florida law includes a number of rights that are not affected by the guardianship.  Some of these rights include the right to a review of the restriction of rights and the right to have capacity restored.  In addition, Florida law is clear that the ward has a right to be treated humanely, with dignity and respect.  

The rights of the guardian and the retention of certain rights by the ward are determined by the type of guardianship.  In a limited guardianship, the ward may retain a number of rights that they are capable of managing while the guardian will have the authority to act for other rights.  

For more information on which rights may or may not be taken from the ward or given to the guardian, check out Florida Statutes section 744.3215.  

4. Other Requirements

Anyone who is appointed as a guardian in the state of Florida must be represented by an attorney who is admitted to practice in the state. The only exception to this is if the appointed guardian is an attorney admitted to practice in Florida.

It is possible to incorporate into your estate plan any wishes you have should a guardianship become necessary.  In fact, health care planning documents may even eliminate the need for a court to appoint a guardian.  By designating a Health Care Surrogate or Power of Attorney Agent, you can help ensure that your needs and wishes are communicated.  

For any questions regarding setting up a guardianship or how to plan for old age, call Stivers Law at 305-456-3255.

Related posts:

How Does Getting Remarried Impact an Estate Plan? Will I Lose My House If I Need Help from Medicaid? Celebrating Older Americans Month