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Guardianship

Judith A. Frankel, Attorney At Law - Guardianship Attorney Miami Beach

WHAT IS A GUARDIANSHIP?

A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person.

WHAT IS A GUARDIAN?

A guardian is an individual or institution such as a bank trust department appointed by the court to care for an incapacitated person-called a "ward" or for the ward's assets.

HOW IS A PERSON DETERMINED TO BE INCAPACITATED?

Any adult may file with the court a petition to determine another person's incapacity setting forth the factual information upon which they base their belief that the person is incapacitated.

The court then appoints a committee of three members, usually two physicians, and another person who by knowledge, skill, training or education can report its findings to the court. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition and each member of the committee must submit a report of his/her findings to the court.

The examination of the incapacitated person must include 1) a physical examination, 2) a mental health examination and 3) a functional assessment.

The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing.

WHO MAY SERVE AS GUARDIAN?

Any adult resident of Florida can serve as a guardian. A close relative of the ward who does not live in Florida may also serve as a guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Institutions such as a bank trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed guardian, but a bank trust department may only act as guardian of the property. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of preneed guardian or at the hearing.

The Court may not appoint a guardian in any circumstance in which a conflict of interest may occur.

WHAT DOES A GUARDIAN DO?

A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward's support, and account for it by filing detailed annual