Establishing Guardianship

Incapacity and Guardianship

Incapacity refers to an inability to effectively exercise one’s rights on one’s own behalf. Guardianship is the appointment of one person, called the “Guardian”, to exercise the rights of another person who is incapacitated, called the “Ward”.

How can you tell if a person is “incapacitated”?

There are several kinds of Incapacity, not just the common image of an elderly person afflicted by dementia.  We are all Incapacitated to some extent until we reach age eighteen (18) and acquire the legal right to contract on our own behalf.  A person is Incapacitated when they are unable to effectively exercise one or more of their own rights on their own behalf.  Some of the more common varieties of Incapacity include:

• Dementia - Most often seen in the elderly, this is actually a broad category of disorders including Alzheimer’s, Lewy Body, Parkinson’s and Vascular Dementia, caused by a stroke or TIAs.

• Brain Injury - Trauma to the head, anoxia (lack of oxygen) or other medical complications sometimes result in injuries to the brain which can render a person of any age Incapacitated.

• Developmental Disability - Autism, Spina bifida, CP, Prader Willi Syndrome or any childhood diagnosis accompanied by retardation may result in a need for assistance in the exercise of some rights.

• Youth – Persons under age eighteen (18) need a Guardian to exercise their property rights if they acquire property of significant value, need to file a lawsuit or wish to enter into a binding contract.

Do all Incapacitated persons need a Guardianship?

Though an Incapacitated person almost surely needs assistance safeguarding themselves and their property, by law Guardianship is actually the last alternative that should be considered.  In fact, when someone has been determined to be Incapacitated the Court must determine whether any less restrictive alternative is available which could adequately protect the person.  If you feel someone you care about needs protection consider the following:

• If the person may still have capacity…

    • They may be able to avoid guardianship entirely by appointing trusted relatives or friends to act on their behalf
      as agents under a Power of Attorney or Health Care Surrogate.

    • But would prefer the Court supervise their care, they may still avoid much of the guardianship process by establishing
      a Voluntary Guardianship on their own behalf.

• If the person no longer has capacity…

    • But has signed estate planning documents, only a Determination of Incapacity is needed.

    • And has never signed estate planning documents then a Guardianship may be unavoidable.

Are all Guardianships the same?

There are several kinds of Guardianship, each designed to address the specific needs of a different kind of Incapacity.  The more common kinds of Guardianship include:

 • Voluntary Guardianship - A person who has capacity, but who is having difficulty managing their financial affairs because of health problems or infirmity due to aging, may request the Court “act” as if the person is Incapacitated and appoint a Guardian to oversee the person’s financial affairs.  Similar to a Power of Attorney, the Ward may choose the person who will act on their behalf and only grants that agent authority over specific financial affairs.  Unlike a Power of Attorney, only the Court may establish a Voluntary Guardianship and, while the Guardianship exists, the Ward’s rights are suspended.  As with all forms of Guardianship, the Guardian’s activities are subject to ongoing judicial supervision and annual reporting requirements.  Voluntary Guardianship is only advisable when necessary to avoid one’s own poor decisions or where ongoing court supervision is desired.  (See F.S. §744.341)

• Determination of Incapacity - A judicial Determination of Incapacity removes some or all of a person’s rights and should be avoided whenever possible.  If unavoidable, it must be coupled with the least restrictive alternative to guardianship possible or, if no such alternatives exist, with the least restrictive form of guardianship.  When an allegation of Incapacity is presented to the Court a committee of three examiners is appointed to evaluate the Ward.  The examiners’ Reports and any other relevant evidence are presented to the Court and, if appropriate, an Order Determining Incapacity is entered which removes some or all of the Ward’s rights.  If any rights are removed the Court must then either ratify the Ward’s existing estate planning documents as less restrictive alternatives to guardianship or appoint a Guardian.

• Guardianship (based on a Determination of Incapacity) - If a person has been determined to be Incapacitated by the Court but has no adequate estate planning documents, the Court will appoint a Guardian to exercise some or all of the Ward’s delegable rights.  Plenary Guardianship involves the removal of all of a Ward’s rights while a Ward who retains any rights has only a Limited Guardianship.  As with all forms of Guardianship, the activities of both Plenary and Limited Guardian are subject to ongoing judicial supervision and annual reporting requirements.

• Emergency Temporary Guardianship - When circumstances require immediate intervention, an expedited form of Guardianship based on a Incapacity may be requested.  If the Court can be convinced there is imminent risk of harm to the Ward’s health or finances an Emergency Temporary Guardian may be appointed to exercise some or all of a person’s delegable rights until the question of the person’s Incapacity has been resolved.  Emergency Temporary Guardianship may only last ninety (90) days.  (See F.S. §744.3031)

• Guardian Advocacy – A person who has a developmental disability (Autism, Spina bifida, CP, Prader Willi Syndrome or any childhood diagnosis accompanied by retardation), or any interested person concerned about their wellbeing, may request the appointment of a Guardian Advocate.  Guardian Advocacy is quite similar to Guardianship based on Incapacity, but has abbreviated procedures which avoid both the need for examinations by a court appointed examining Committee and a formal Determination of Incapacity.  Instead, the relevant rights of the person with a developmental disability are delegated based on a Statement from the person’s Primary Care Physician.  Guardian Advocacy affords more dignity to the person with the disability, is less expensive than other forms of Guardianship and is, by law, a less restrictive alternative than Guardianship based on Incapacity. (See F.S. §393.12)

• Guardianship of a Minor – Any person who is not yet age eighteen (18), or any interested person concerned about their wellbeing, may request the Court appoint a Guardian over that minor.  This usually results from the minor acquiring or inheriting property of significant value, the need to resolve a lawsuit or a desire to enter into a binding contract.  No examinations are required as Incapacity is due only to the person’s tender years and the Guardian is frequently one or both of the minor’s parents.  The appointed Guardian is responsible for the exercise of the Ward’s delegable property rights until the Ward reaches 18 years of age and can legally manage their own finances. NOTE:  This form of Guardianship is not used to address concerns about the inadequate parenting, which must be resolved before a Dependency Court, and only rarely is it used to address the absence of an adult caregiver. 

• Contested Guardianship -

How complicated is Guardianship?

The initial stages of a Guardianship usually require four months to complete.  That timeframe and the complexity of the case vary based on several factors, including whether the case is:
 • Contested or Uncontested
 • Plenary or Limited
 • Requested on a Emergency Temporary basis or within the standard schedule

However, the resulting Guardianship lasts until the Ward’s death unless the Ward regains adequate capacity to resume control of their own rights.  Guardians serve for the duration of the Guardianship or until the Guardian’s resignation, removal or death.  Usually a Guardian’s ongoing responsibilities become routine and are quite manageable, but as a Ward encounters life’s complications their Guardian’s role can become more complex.  

Who usually is appointed to serve as Guardian?

The person appointed to exercise a Ward’s rights (referred to as the “Guardian”) is often the Ward’s spouse, an adult child or another close relative.  Regardless of their relationship to the Ward, all proposed Guardians must pass a thorough background check.  When necessary, the Court may appoint a professional guardian who serves numerous Wards for a nominal hourly fee.

NOTICE

Individuals and families in low income households are invited to visit the Center for Guardian Advocacy website. Click here.