If you have a relative who is no longer able to manage their own affairs, it may be necessary to establish guardianship to protect that person. Guardianship is a serious legal matter that can be managed easily by an experienced Florida elder law attorney. At the Law Office of K. Hunter Goff, P.A., we can help you with all aspects of establishing and managing a guardianship.

Determining Legal "Incapacity"

Florida lawspells out detailed procedures for determining whether a person is legally "incapacitated" and therefore requires a guardianship. The person seeking a guardianship must file a petition with a Florida court. This petition must be served on (or read to) the allegedly incapacitated person, their attorney, and any next of kin. The court will appoint an attorney to represent the allegedly incapacitated person, though the incapacitated may substitute their own attorney if they wish.

The next step is for the court to name a three-member "examining committee" to assess the allegedly incapacitated person's physical and mental capacity. The committee members must be licensed professionals, including at least one psychiatrist or physician. At least one committee member must have "knowledge of the type of incapacity alleged in the petition." For example, if the petition alleges the person suffers from dementia, one committee member must have expertise in dementia.

If a majority of the examining committee-two out of the three members-determine the person "is not incapacitated in any respect," the court is required to dismiss the guardianship petition. Otherwise, the court holds a hearing. Attorneys for the petitioner and the allegedly incapacitated person present evidence to the judge. The judge then determines whether there is "clear and convincing evidence" of incapacity.

Even if the court determines there is some degree of incapacity, it may only establish a guardianship if there is no alternative "that sufficiently addresses the problems of the incapacitated person." A guardianship may also be limited to certain powers, such as control over the incapacitated person's property but not his health care decisions. If the court determines the person is totally incapacitated, however, it may appoint a "plenary" guardian who can effectively make all decisions for that person.

Emergency Temporary Guardianships

The process described above may take several weeks or months to complete. If the allegedly incapacitated person is in "immediate danger," the petitioner may therefore ask the court to appoint an "emergency temporary guardian." For example, in a recent Florida case a court appointed an emergency temporary guardian for a 91-year-old man who suffered from dementia because "his live-in caretaker had moved out, and no replacement caretaker had been hired." There were also concerns that the man's finances were being mismanaged. (The man passed away before a permanent guardianship hearing could take place.)

Establishing a guardianship is a complicated legal process involving a number of parties. It is not something you can handle by yourself. If you have any questions about the process, call a Florida elder law lawyer at our office today at 866-409-1647 to schedule a consultation.