Guardianship Litigation

A Guardian is a person appointed by a Court to act as a decision-maker on behalf of a child or a incapacitated adult, known as the Ward. Guardianship is a delicate position with a great deal of responsibility, as a Guardian may have charge of all decisions affecting another person’s personal and financial affairs. An experienced Fort Lauderdale guardianship attorney can assist in the process of appointing a guardian or, if necessary, opposing the appointment.

Who Might Need a Guardian?

Florida law requires the involuntary appointment of a Guardian in certain situations, including a child whose parents have died or become incapacitated. An adult may need a Guardian if the adult has become incapacitated or disabled in a way that impairs his or her ability to make decisions for him or herself. An adult may also voluntarily petition to have a Guardian appointed if the adult is incapable of managing his or her own estate for some reason. The Court must exclude all less restrictive options, such as a Durable Power of Attorney, or Trust, before appointing a Guardian.

Who Can Be a Guardian?

Any adult can file a Petition to determine the incapacity of a person, clearly identifying the proposed Ward, the person’s relationship to the Ward, factual information as to why the Ward is incapacitated, the Ward’s physician, specific legal rights the Ward is incapable of exercising, and the proposed Ward’s next of kin.

Once the Petition is filed, the Court will appoint a three-member Examining Committee to review the Ward. The Committee must include at least one psychiatrist or physician, and the other members must be credentialed in a field related to mental health. Committee members investigate the Petition’s allegations, interview the proposed Ward, and make written recommendations to the Court. If they recommend the appointment of a Guardian, the Court will hold a hearing to determine the extent of the Ward’s incapacity.

If the Court approves the appointment of a Guardian, the Court must determine the scope of a Guardian’s authority based on the Ward’s condition and needs. The Court must only delegate reasonable and necessary powers to the Guardian to act on behalf of the Ward.

Florida law sets forth the group of persons who can qualify to serve as Guardian of a Florida Ward.

What Are the Ward’s Rights?

When a Petition is filed, the Court must appoint an attorney to represent the proposed Ward in the Court proceeding and to object on behalf of the Ward, where appropriate.

Once a Guardian is appointed, Florida law lists specific rights of the ward, including a right to an annual review of the Guardianship Plan, the right to continued review of the need for a Guardian, and the right to remain as independent as possible and to have rights renewed whenever possible. A Guardian has a duty to treat the Ward with dignity and respect, to provide for the Ward’s education, to properly manage the Ward’s finances, and to faithfully carry out any other duties imposed by the Court or Florida law.

Fort Lauderdale guardianship litigation attorney Mark R. Manceri has represented the people of Florida in guardianship proceedings for over 30 years. Contact the firm through its website or at (954) 491-7099 to schedule your initial consultation.

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