Incapacitated persons, their guardians and the guardianship

An incapacitated person is an adult who has been determined by a court to be lacking in the capacity to manage some or all assets and/or to meet at least some essential health and safety requirements.  The guardian is a person or entity, either a bank trust division or not-for-profit corporation, who receives the appointment from the court to care for and safeguard the incapacitated person and/or that person’s assets.  The guardianship is the legal proceeding in the circuit court which deems the person incapacitated, either partially or fully, and appoints the guardian to exercise the legal rights of that incapacitated person.

The incapacity determination

A petition can be filed by any adult which sets forth the factual grounds upon which the belief that the person is incapacitated is based and requesting that the court make a determination as to the incapacity of another.  A committee of three members will then be appointed by the court.  This committee which typically be comprised of two physicians and a third person who is considered an expert, based upon knowledge, skill, training and/or education.  All three members must submit a report of findings to the court and at least one of the members must possess knowledge of the type of incapacity alleged in the petition.  The examination will usually include a functional assessment, physical examination and mental health examination.  Similarly, the court will then appoint an attorney to represent the alleged incapacitated person and the alleged incapacitated person can substitute another attorney for this court-appointed attorney.  The court is required to dismiss the petition if the examining committee conclude that the alleged incapacitated person is not incapacitated.  On the other hand, if the committee comes to the conclusion that the person is unable to exercise only certain rights, the court will schedule a hearing to determine total or partial incapacity.  Should the person be found to be incapacitated in any respect, the court will be appointed at the hearing.

Guardians for minors

The parents of a minor are the natural guardians of the minor and, generally speaking, can act on behalf of the child.  In the event of the parents death or incapacity, the court must then appoint a guardian for the minor.  Also, should the child inherit funds or be awarded proceeds from a life insurance policy or a lawsuit in excess of $15,000, a guardian will be appointed by the court.  Both parents or a surviving parent can designate a guardian in a will or file another written declaration naming the guardian of the child’s assets or person in the event both parents die or suffer incapacity.

The rights and responsibilities of a guardian

The guardian of the assets of an incapacitated person must maintain an inventory of those assets, invest them as a prudent investor would, utilize them for the incapacitated person’s support and filed detailed reports on an annual basis to account for the assets with the court.

The guardian of the person of an incapacitated person must exercise the rights that have been removed from the incapacitated person and entrusted to the guardian, such as the provision of medical, mental and personal care services and the determination of the location and type of home best suited for the needs of the incapacitated person.  Similar to the guardian for the assets, the guardian of the person much file with the guardianship court a report from a physician and detailed plan for the person’s care and welfare on an annual basis.

Should the guardianship court find that the incapacitated person is only partially incapacitated, a limited guardian will be appointed to perform only those rights of which the person is incapable of exercising.

The qualifications of a guardian

To serve a guardian, one merely need to be an adult resident of Florida and need not be related by blood to the incapacitated person.  Certain relatives of the person who are not residents of Florida may be able to get the appointment as guardian.  Professional guardians, public guardians, non-profit organizations and bank’s trust divisions can attain the appointment as guardian, but banks can only serve as a guardian of a person’s assets.  The court will give consideration to the wishes as expressed by the incapacitated person in a written declaration of pre-need guardian, in a will or verbally at a hearing on the guardian’s appointment.  Those who are not able to perform the duties of a guardian and convicted felons cannot be appointed guardian.  Those with conflicts of interest, of some nature, may also fail to qualify for appointment as a guardian.

The accountability of a guardian

The guardian, whether of the assets or person on an incapacitated person, must be represented by an attorney or attorney of record of the guardianship.  While banks, public or professional guardians are not required to file a bond, most individual guardians will be required to post a bond and must complete a court-approved training program.  A court clerk must review the annual accounting and reports of the guardian