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How Do I Acquire Guardianship Over My Parent?

December 10, 2021 CSBB Blog

Far too often we are faced with the reality that our parents are fallible, whether it be forgetting or refusing to take medication, giving away money, gifts, or possessions, or becoming violent with health care providers. Florida law provides several methods to allow you to step-in and obtain the appropriate authority to make decisions for your parent.

Guardianship is typically viewed as a last resort. Not simply because of the expense associated but because it is an adjudication by the court that your mother or father will no longer have some or all of their rights.

In Florida, guardianship can be avoided if your parent has certain documents in place, for example:

  • Power of Attorney
  • Designation of Health Care Surrogate
  • Trust

If your parent does not have these alternatives in place a guardianship may be necessary.

A guardian has a court-ordered authority that is similar to a parent over a minor child.  The guardian can make property and health care related decisions for the parent—referred to as a Ward. Through a guardianship you can take steps necessary to ensure your parent will be free from financial exploitation and get the medical care they need.

Obtaining Guardianship

A guardianship proceeding over a parent commences with a child filing (1) a petition for incapacity; and, (2) a petition for guardianship.

The petition for incapacity is the filing with the court alleging that your parent is not able to continue making decisions on their own. The petition for incapacity lists which rights you request are removed from your parent.

Once the petition for incapacity is filed the court will (1) appoint an attorney for your parent; (2) appoint a three-member examining committed to examine your parent; and (3) set a hearing for the adjudication of your parent’s capacity.  At this stage your parent is referred to as Alleged Incapacitated Person or AIP.

Examining Committee. Usually this three-member committee is comprised of a medical doctor, a psychologist, and a lay person.  The examining committee is ordered by the Court to examine the Alleged Incapacitated Person and—following the examination—issue a report with a finding whether the Alleged Incapacitated Person is incapacitated.

If at least two of the three examining committee members determine that the AIP is incapacitated, the case will proceed to a hearing.  

Incapacity Hearing. If you are the individual who filed the Petition, you will be able to put on witnesses and evidence in furtherance of proving your parent or loved one is incapacitated.  You are allowed to call an expert witness, in addition to calling the examining committee members, to testify at the hearing (also referred to as the trial).

Your parent is also permitted to testify.  If you believe your parent may be capable of testifying in opposition to the finding of incapacity, it is imperative that you put on evidence of their incapacity—including poor decisions they have made and/or bad acts they may have undertaken. For example, if your parent has improperly gifted large sums of money or if they are being exploited by another child or caretaker. Such evidence is helpful to your position and for the Court to make a finding that your parent is in fact incapacitated.

Lesser Restrictive Alternatives. If the Court makes a finding and adjudicates your parent incapacitated, the next determination the Court is faced with is whether a guardianship is even necessary.

If the Alleged Incapacitated Person has documents (e.g., Power of Attorney, Designation of Health Care Surrogate; Revocable Trust) in place that are considered lesser restrictive alternatives to a court ordered and monitored guardianship they Court will consider whether a guardianship is necessary.  Florida law provides that if there are lesser restrictive alternatives the Court may defer to them in lieu of a guardianship.

Guardianship Hearing. If there are no documents in place or the Court finds the documents unsuitable as a lesser restrictive alternative the proceedings continue for a determination of who should be the guardian.  Depending on the Court, county, and a variety of other circumstances, the appointment of a guardian may be at the same hearing as the incapacity determination or it may be scheduled for hearing at a later date. 

The guardianship court will then appoint a family member, a professional guardian, or someone appointed in a pre-need guardianship document.  This hearing may also permit the introduction of evidence and testimony in order to aide the Court with determining who should be appointed guardian. 

Lawyer Required.  At every stage of the proceedings, from the filing of the incapacity proceeding, all the way through the guardian’s appointment and court-monitored administration, the guardian is required to have a lawyer.

Who may be appointed guardian? Any adult resident of this state may be appointed guardian.  A non-resident may also be appointed if they are a close relative.  Banks, trust companies, and certain nonprofits may serve as guardian. More information on who may be appointed guardian may be found here.

Annual Accounting Requirements. A guardian is required to account to the Court.  Guardians of the person and property must report to the court their plan for the Ward and an accounting of the guardianship estate for the last year.

Guardians who improperly account, fail to account, or otherwise breach their fiduciary duty may be removed.

Restoration of Rights. Under Florida law, guardianships are not permanent. If your parent has previously been adjudicated incapacitated, they can have their rights restored in whole or in part.  After the filing of a suggestion of capacity the Court will appoint a physician to examine your parent.  The Court can then restore your parent’s rights, or some of their rights as the evidence and examination recommend.

To learn more about Florida guardianship and how the process may be utilized to help your parent or loved one, please contact us online us or call us at 561-626-2101 or toll free at  800-226-1484.

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