One of the most challenging problems in Florida elder law is dealing with a relative who is no longer capable of making basic financial or personal care decisions for themselves. Florida provides a legal remedy for such cases-the creation of a guardianship.

What Is a Guardian?

In this context, a guardian is a person (or institution) appointed by a court to oversee the affairs of an adult suffering from mental or physical disabilities. The law refers to the incapacitated adult as a "ward." A court may create a limited guardianship, where the guardian only exercises certain specified powers on behalf of the ward, or a plenary guardianship, where the ward is found totally incapacitated and incapable of making any decisions.

Not all guardianships are contested. In fact, the ward may file a petition to establish a voluntary guardianship. A voluntary guardianship usually applies when the ward is mentally competent but suffers from physical infirmity that necessitates assistance from a guardian. A court will only agree to a voluntary guardianship if the ward's physician certifies that he or she is mentally competent "to understand the nature of the guardianship."

However, in many cases the guardianship is involuntary and established on the petition of a family member or other interested adult. When an involuntary guardianship is requested, the court will appoint a three-person committee-generally two doctors and a third expert who specializes in the disability alleged in the petition-to review the ward's condition and make a report. The court also appoints an attorney to represent the ward's legal rights and interests separate from the person who filed the petition.

Who Can Serve as Guardian?

Whether voluntary or involuntary, just about any adult resident of Florida may serve as the guardian. Typically the guardian is a close family member, such as a spouse or adult child. However, a person who has previously been convicted of a felony may not serve as guardian. The court may also disqualify a guardian if he or she lacks the capacity to carry out the duties of the appointment.

If there is no family member available, the court may appoint a public or professional guardian instead. This is a person (or corporation) who specializes in providing guardianship services. A public guardian is a person appointed by the Florida Department of Elder Affairs. The Department also maintains a registry of qualified professional guardians, who are private parties who meet certain background and educational requirements.

A guardianship is a significant undertaking. If you are named as a guardian, you become legally responsible to the court for the ward's personal care and property. You cannot simply ignore your ward when it becomes inconvenient or overwhelming.

If you suspect a guardianship may be necessary for a family member, your first step should be to consult with a qualified Orlando elder law attorney. Contact the Law Office of K. Hunter Goff, P.A., today at (866) 409-1647 to schedule a consultation.