Miami Guardianship Attorney

If at some point a person becomes unable to care for himself or herself either in regard to their personal needs or management of their financial matters, the Court may be required to appoint a Guardian. Guardianship proceedings are legal proceedings that can involve the need for experienced Counsel at the initiation of the proceedings, during continuing Court supervision of the administration, and upon the termination of the Guardianship. The need and complexity of these proceedings can be minimized by the preparation, prior to Incapacity, of a complete and comprehensive Estate Plan. 

What is a Guardianship?

Guardianship is a legal proceeding that allows a person who has been designated the “Guardian” to act on behalf of another person, who is called the “Ward.” This type of legal proceeding is necessary if a person becomes Incapacitated but has not previously designated a person to be responsible for their affairs via a Power of Attorney, as part of a comprehensive Estate Plan. The failure to do proper planning, setting forth a person’s preference as to who should manage their person and property during their Incapacity, can result in unnecessary conflict due to family dynamics which can complicate an otherwise already stressful time. Often, these internal family legal proceedings over who should be appointed Guardian, with each side claiming to act for what they genuinely believe would be the wishes of the Incapacitated family member, are conducted by all sides in genuine good faith. Often these disputes are based on improper motive. A Guardian will usually be someone like a family member, but for reasons which include family conflict, the Court may also appoint an institution such as a nonprofit organization or a Bank who are paid professionals.

What Are the different types of Guardianship?

Guardianship may be granted over a person, a person’s property, or both. Guardianships also may either be a Limited Guardianship or a Plenary Guardianship.

In a Limited Guardianship the powers delegated are limited to specific rights of the Ward. If the Court determines that the Ward has the capacity to perform some but not all the necessary actions to care for themselves and their property, then a limited guardianship may be approved. 

In a Plenary Guardianship the powers delegated are an authorization to exercise all rights on behalf of the Ward. If a Ward is completely unable to care for himself or herself, then a full guardianship would appear to be most appropriate, which allows the Guardian to make all decisions on behalf of the Ward. This is known as a Plenary Guardianship.

Guardianship of the Person gives the guardian the authority to exercise any rights which relate to the personal, medical, and social needs of the Ward, which a Court has determined the Ward is unable to be performed for themselves.

Guardianship of the Property gives the Guardian the authority to control a Ward’s property and they are responsible to manage it on behalf of the Ward subject to both legally defined standards and continuing Court supervision. The Guardian is expected to manage the property responsibly with the goal of supporting the Incapacitated person and must provide detailed reports of their activities to the Court.

Who may need a guardian?

There are a few categories of people who may be determined to be incapacitated and therefore in need of a Guardian to manage their affairs.

1. Persons who are either physically or cognitively impaired, and who have reached the age of 18, and are therefore legally responsible for themselves, but who do not have the capacity to care for either their person or property on their own behalf.
2. Elderly people who are suffering from degenerative diseases such as Alzheimer’s or Parkinson’s or dementia.
3. Minors under the age of 18 who have either been orphaned or had their parents determined to be unfit. Florida law also requires a guardian to be assigned to a minor who has received an inheritance, lawsuit award or settlement, or insurance policy payout over the amount of $15,000.

How to obtain a Guardianship?

In all Guardianship cases, other than a minor’s, the Court will first be required to make a determination of Incapacity by issuing an Order Determining Incapacity, and then the Court must determine that a Guardianship would be appropriate for the ward.

Guardianship for Minors

The parents of a child under the age of 18 are the Natural Guardians or the Legal Guardians of their child. However, if the minor receives a settlement of a suit that exceeds $15,000 in value, then a Guardian of the property must be appointed to protect the minor’s financial interests. This Guardianship will last until the child reaches the age of 18.

Petition to Determine Incapacity

If a concerned person believes that another adult is incapacitated and in need of Guardianship, they may file a Petition To Determine Incapacity with the appropriate Court to commence proceedings in which the Court will, subject to legal standards, determine the capacity of that person. A copy of this Petition To Determine Incapacity will be given to the potential Ward, court-appointed or private legal counsel for the potential Ward, and next of kin of the potential Ward. An Examining Committee is a panel of three experts who are appointed by the Court, and the Examining Committee is responsible for examining the Alleged Incapacitated Person and filing a report of their findings. This report will make a recommendation of whether the person should be determined partially, fully, or not incapacitated.

In order to place an adult under Guardianship, an incapacity hearing must be held. The Court will then determine whether to declare the person Incapacitated. Someone may be declared incapacitated if he or she can no longer make or communicate sound decisions about themselves or their property. 

Guardianship Proceedings

Once an adult has been declared Incapacitated, then a Guardianship proceeding will take place to determine who should be appointed as the Guardian or if Less Restrictive Alternatives to Guardianship have been previously prepared through proper Estate Planning. An Interested Person may apply to be appointed Guardian and should be represented by an Attorney during the Guardianship proceedings.

A Guardian may be appointed over the person only, the person’s property only, or both. The Guardian, once appointed, is responsible for the Ward’s well-being. In the case of property, the Guardian has a fiduciary duty to the Ward, and thus must file annual accounting of financial transactions and acquire permission from the court to access the Ward’s money.

Cost of Guardianship Proceedings

Guardianship proceedings in Miami can be a simple or complex proceeding depending on whether there is family disharmony or whether the Alleged Incapacitated Person chooses to contest the allegations in the Petition To Determine Incapacity. If a Guardianship is established, the costs of the attorney representing Petitioner for Incapacity and the Ward should be paid from the Ward’s assets.