When does a Florida resident need a professional guardian?
An incapacitated person may need a guardian to manage financial and health matters. If there is no alternative, a judge may appoint a professional guardian.
Many Florida residents will eventually need someone to take care of their decisions for them at some point in their life. The state law refers to these decision-makers as guardians, and the courts have the authority to appoint them. The state also registers professional guardians, and in some cases, a judge may choose one of these individuals or institutions to fulfill the role.
The Florida Bar explains that people only need a guardian if the courts determine that they do not have the ability to manage some or all of their property, financial matters and/or health and safety needs. Any adult who believes someone cannot manage his or her own affairs may file a petition with the court. The petition must include facts that back up the belief of incapacitation.
The judge does not take that person’s word for it. A panel of three experts, usually consisting of at least two medical doctors, will perform examinations. A determination of full or partial incapacitation will result in the appointing of a guardian if an alternative is not in place.
No estate planning documents
Many people plan ahead for incapacitation by creating an advance directive or power of attorney document. These estate planning tools allow someone to name individuals or institutions to take care of matters in the event of incapacitation. By naming someone before incapacitation is an issue, people can communicate their wishes and prevent decisions that they would not want for themselves or their assets.
No relative available
Typically, the courts prefer to appoint a guardian from the family. The Florida Statutes state that if family members cannot or do not wish to be a guardian, they may express a preference to the court before the judge makes the appointment. The incapacitated person may also express a preference if the judge determines that he or she is able to do so.
Even a family member who applies must go through a criminal background check. No one with a felony conviction or who has abused or abandoned a child may serve as guardian.
The court appoints one
After reviewing all the evidence, a judge has the authority to overrule an advance directive or power of attorney if he or she believes that the individual or institution the document names is not capable of representing the incapacitated person’s best interests. In the event that there is no other alternative, the judge may decide that a professional guardian is necessary. The Office of Public and Professional Guardians ensures that these professionals have the education and background necessary to fulfill the roles and responsibilities.
Every person facing an incapacitation hearing has the right to an attorney, and elder law attorneys often provide advice and representation to incapacitated people and their loved ones in a court hearing over guardianship. A solid estate plan may prevent the need for this legal step.