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Guardianship Litigation – Appointment Of Guardian


While it may be an unthinkable circumstance, you should always have a plan in place in the event you or your spouse becomes incapacitated. That is why it is best to plan for the appointment of a guardian now, so in the event of an untimely death or incapacitation, you will have a trusted guardian who will protect your health, safety, finances, and overall well-being. 

What is the Appointment of a Guardian?

Legally, a guardian is a surrogate-decision maker that is appointed by a Court to make financial and personal decisions for a person who is incapable, mentally or physically, of making decisions on their own. Under Florida law, a guardian is appointed if parents die or become incapacitated and are no longer able to make decisions to ensure their minor child’s well-being. Appointing a guardian is also necessary if a minor child receives an inheritance or other funds as a result of the death of another person that are more than the amount allowed in Florida. Once a guardianship becomes effective, the person under the guardian’s care becomes known as the ‘ward.’ The guardian will be appointed until the ward turns 18, unless they lack the mental or physical capacity to take over responsibilities for themselves at that time.

The State of Florida prefers the ‘less restrictive alternative’ form of guardianship, meaning a guardian may not always be appointed for an incapacitated person. For example, if a person is already aided and protected by trusts, health care directives, and other estate planning tools, a guardian may not be appointed by the Court. On the other hand, Florida law also allows voluntary guardianship. That means a person may petition for a guardian if he or she is mentally competent yet believes he or she is incapable of managing his or her own affairs.

Becoming a Guardian for an Incapacitated Adult

If your loved one does not have the mental or physical ability to manage their own assets or health and safety, you may petition a Court to appoint a guardian for them. Before a guardian is appointed, the ward must undergo evaluations by a committee of professionals appointed by the Court in order to determine whether a guardian is recommended. It may be difficult to get a guardian approved, as it is considered the last resort under Florida law. Courts will always look first to other solutions, such as a durable power of attorney,  a trust, or a health care surrogate.

How is a Guardian Appointed in Florida?

Parents may preemptively designate a guardian for a minor child who will become the presumptive choice to be appointed by the Court if the natural parents are unable or unwilling to serve as guardian. An adult person can nominate a guardian to act on their behalf in advance of their own future incapacity.  You need to take the appropriate steps necessary to make sure your wishes are honored and carried out.

How an Experienced Guardianship Litigation Lawyer Can Help

You should always speak to a Pompano Beach guardianship litigation lawyer to ensure your loved ones will be protected.  Mark R. Manceri in Pompano Beach will work tirelessly to protect your wishes for the future of your estate. Don’t hesitate to contact his office at 954-491-7099 to schedule your first consultation.


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