• Guardianships & Related LitigationInvoluntary Guardianships

    Involuntary Guardianships, as the name implies, involve a formal adjudication of incapacity by a Court of law after notice to all interested persons.  

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    The process begins with the filing of a verified Petition to determine the incapacity of a resident of this state, together with a Petition for the appointment of a Guardian for such incapacitated person which must be filed at the same time.

    The Court then appoints an Examining Committee consisting of three (3) members who shall each examine the alleged incapacitated person and file a written report listing their findings, on the basis of which a Hearing is then held at which such person’s capacity shall be formally determined.

    Due process requires that the alleged incapacitated person be represented by counsel and that he or she be further entitled to be present at such adjudication Hearing.

    At least one of the three (3) members of the Examining Committee must be a psychiatrist or other physician.

    The remaining members must be either a psychologist, gerontologist, another psychiatrist or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the Court’s discretion, advise the Court in the form of an expert opinion.

    At least one (1) of the three (3) members of the Examining Committee must have knowledge of the type of incapacity alleged in the Petition. If the alleged incapacitated person’s attending or family physician is available for consultation, the Examining Committee must consult with the physician.

    If a majority of the Examining Committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the Court must dismiss the Petition.

    If the Court determines that the person (Ward) is incapacitated, it must decide what type of Guardian is appropriate to be appointed for the Ward’s person or property or both.

    A Plenary Guardian is a person who has been approved by the Court to exercise all delegable legal rights and powers of the Ward after the Court has found that the Ward lacks the capacity to perform all of the tasks necessary to care for his or her person and/or property.

    A Limited Guardian is a person who has been appointed by the Court to exercise only the legal rights and powers specifically designated by Court Order entered after the Court has found that the Ward lacks capacity to do some, but not all, of the tasks necessary to care for his or her person and/or property.

    In terms of persons who may serve as a Guardian, any resident of this state who is sui juris and is eighteen (18) years of age or older may serve as Guardian of a resident Ward.

    A non-resident of this state may serve as Guardian of a resident Ward if he or she is related by lineal consanguinity to the Ward; a legally adopted child or adoptive parent of the Ward; a spouse, brother, sister, uncle, aunt, niece, or nephew of the Ward or someone related by lineal consanguinity to any such person; or the spouse of a person otherwise qualified.

    Qualified banks or trust companies may serve as Guardians of property only.

    Certain persons may be disqualified from serving as Guardians by virtue of adverse interests or conflicts of interest, illness or incapacity, unsuitability, or conviction of a felony. When family members are in conflict over who should serve as Guardian, the Court may appoint a neutral, independent Professional Guardian to act in such capacity.

    A Professional Guardian is a person who has the care of three (3) or more Wards and must be registered with and overseen by the Statewide Public Guardianship Office in the Florida Department of Elder Affairs.

    Once appointed, a Guardian is required to file annual plans, reports and accountings with the Court, and most actions of the Guardian require Court supervision and advance approval, which operate to provide continuing protection of the Ward and his or her property throughout the Guardianship process.

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    If you or a loved one needs help with a situation involving one of these areas, please contact Thomas N. Silverman, P.A. at 561.775.7500 (24 hours) or info@FloridaProbateCounsel.com.

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