Have you ever wondered what would happen to you if you were suddenly incapacitated due to an accident, injury or disease? As you get older, what would happen if your ability to properly keep up with all your medications, regular hygiene, or basic finances became difficult or impaired? Is a Florida guardianship in your future or are you protected and what exactly does that protection mean?
As you age and think about your future if you become incapacitated, are you planning for a family member to step in and take over your affairs? Or will the state of Florida have to step in and appoint a guardian for you? The decision may be more difficult than you think.
Unfortunately, even if you have a spouse, adult children, or other willing relatives, Florida law does not assume that they can make decisions for you. Right now you should have proper estate planning in place to accomplish this decision making for you if you are incapacitated. Without any estate planning in place, in Florida, you may have to have a guardianship.
Are you wondering what a guardian does? A guardian is a surrogate decision-maker appointed through a court-approved process. For example, if minor children receive financial assets, those assets must be managed by an adult, usually in the form of a legally-appointed guardian, unless other planning has been arranged. In addition, disabled individuals may also be subject to guardianship. Under Florida law, a guardian can be a person or an entity, like a financial institution or non-profit organization. The person or entity is appointed to exercise the legal rights of the person who is considered incapacitated or unable to make his or her own competent decisions, known legally as a “ward.”
Now, how does the guardianship process work? The guardianship process begins with filing a petition with the court where the alleged ward lives. When the petition is filed, the court will appoint an attorney to represent the alleged ward. A three-member committee of medical professionals is appointed and they will then examine the person and submit their findings to the court (be aware that the process is different for minor children as wards). The presiding judge will then conduct an Adjudicatory Hearing within 30 days and appoint a guardian if warranted.
How long does the guardianship process take? If the guardianship is uncontested then it can usually be completed within 90 days. However, if needed, the court can appoint an emergency temporary guardian. You need to know that if an institution is appointed, such as a bank trust department, then the institution can only make decisions about the ward’s property, not about the ward himself or herself.
Does Florida law prohibit anyone from being a guardian? Yes. The law in Florida prohibits anyone, even family members, from becoming a legal guardian if they have been convicted of a felony, were judicially determined to have committed abuse, abandonment or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses.
Now, all the above being stated, it is of the utmost importance that if you do not want a Florida court to decide who your guardian should be you should begin planning now. There are estate planning tools that you can have an experienced Florida estate planning attorney prepare right now, prior to incapacitation or incompetence. A power of attorney is an estate planning tool that will legally allow you to choose a trusted individual, like your spouse or adult child, to have the legal right to act on your behalf, whether it is to handle your financial decisions and/or your healthcare decisions.
Be aware that any estate planning is not just for you but for your family, as well. To give your loved ones peace of mind, make plans to contact your Florida estate planning attorney as soon as possible and create a good and solid estate plan for yourself now and in the future.
At Britton G. Swank, P.A., our mission is to guide you in the right direction to help you provide for yourself and your loved ones no matter what the future holds. We want to help you control the assets you have, leave them to people and causes you care about, when you want, in the way you want. We can help you take care of yourself and those you love in the event of disability due to illness, injury or old age. No matter what risks unfold, we can help give you the comfort of knowing you are prepared. We want you to feel good about your future and the future of your loved ones. We encourage you to contact us and schedule a meeting.