By Anthony A. Velardi, Esq.
Estate Planning, Elder Law & Real Estate Attorney
WHAT IS A GUARDIANSHIP OR CONSERVATORSHIP?
A guardianship is a legal relationship between a guardian and a ward, who is a person the court has declared incapacitated and has had some or all of their rights removed by the court and delegated to the guardian. While guardianships are an extremely effective tool, they should be the last resort and sought only when there are no lesser restrictive alternatives, such as a Durable Power of Attorney.
People who may need a guardianship include those with dementia, Alzheimer’s disease, a developmental disability, chronic illness, or another condition that limits their activity. Before a guardianship is established, the court must determine whether the alleged incapacitated person lacks capacity.
The first step in a guardianship is filing a petition to determine whether a person has capacity. Anyone with knowledge of the circumstances can file a petition asking the court to determine whether someone lacks capacity. The court then appoints an examining committee consisting of three professionals to evaluate the alleged incapacitated person. The examining committee is comprised of professionals such as licensed physicians, psychiatrists, psychologists, gerontologists, registered nurses, nurse practitioners, and licensed social workers.
The next step is for the court to hold a hearing to review the examining committee’s reports and other evidence and hear testimony as to why a guardianship is needed. The court also appoints an attorney to advocate for and represent the interests of the alleged incapacitated person.
If the court finds that the alleged incapacitated person still has their wits about them, then no guardian is appointed. However, if the court finds that the alleged incapacitated person lacks capacity, then the court appoints a guardian for the ward. Depending on the facts and circumstances, the court may appoint a guardian of the person, a guardian of the property, or a guardian of both the person and property of the ward.
A guardian has the authority to exercise the rights that have been removed from the ward such as the right to contract, to apply for government benefits, to sue and defend lawsuits, to manage property or to gift or dispose of property, to determine the ward’s residence, to consent to medical or mental health treatment, and to make decisions concerning the ward’s social environment.
The initiation of a guardianship case can be costly because there is a filing fee, the court-appointed attorney’s fees, and fees charged by the examining committee. If the ward has assets, these fees may be paid from the ward’s assets. However, the state may cover these costs if the ward is indigent. Florida law requires that every guardian be represented by an attorney. There will also be additional fees when the guardianship is established, such as the guardian’s fees and the guardian’s attorney’s fees, which can add up.
Anyone may serve as the guardian of a ward as long as they meet certain qualifications, such as not having a felony conviction and not having committed abuse, abandonment, or neglect against a child. Sometimes, a family member or close friend may serve as guardian. Often, the court appoints a professional guardian to handle the ward’s affairs, especially if there is bickering and animosity among the ward’s family members.
A guardian must submit reports to the court, such as Annual Plans and Annual Accountings, to ensure that the court is supervising the ward’s affairs and monitoring the guardian’s actions. I recommend you contact an elder law attorney if you know someone who may need a guardianship or to discuss a lesser restrictive alternative such as a Durable Power of Attorney.
Anthony A. Velardi, Esq.
AV Law PLLC
Treasure Island, FL 33706
727-641-4110
anthony@avlawpllc.com