Some people are incapable of making certain decisions for themselves. These might be financial decisions, or they may be personal decisions. In either event, when someone isn’t able to make decisions on their own behalf, a guardian is appointed to make those decisions for them. This appointment establishes a guardianship.
“Guardianship” is a legal term which refers to a specific relationship, established by the courts, when certain conditions have been met. It is important to understand that there is a difference between not being able to make decisions, and not choosing someone else’s idea of a “good decision.” For example, imagine a person intends to leave their estate to an organization dedicated to saving whales. Even though the children of this person may not like the idea of the money going to saving the whales instead of them, this is not evidence of incapacity. On the other hand, a person who gives all their money to an organization dedicated to saving the whales and consequently doesn’t have money for food each month may be incapacitated. This determination is up to the courts.
Typically, there are two separate types of guardianships – onegoverning children and one governing adults. In Florida, the requirements for establishing guardianship vary, depending on the situation.
Guardianship and Children
There are a few circumstances where the court appoints a guardian for a child. If the child stands to inherit a sizable sum of money, or if the child is the potential recipient of a large legal settlement, a guardian may be appointed. Whether the court has the option of appointing a guardian or is required to appoint one is dependent on the amount of money at issue.
Different Types of Adult Guardians
Because different people face different circumstances, a “one size fits all” approach to guardianship doesn’t make sense. Below are a few different types of guardianships available in Florida.
There are two situations where a guardian advocate may be appropriate. First, if a person has developmental disabilities, but is capable of performing some of the tasks necessary for daily living, a guardian advocate may be appropriate. In that case, the guardian assists in or manages those areas where the person cannot handle it themselves. However, the person is free to make decisions in other areas of their lives without guardian involvement.
Another situation where a guardian advocate may be appropriate is where an otherwise sound individual finds they face challenges in one or more areas of their lives, but do not need a guardian to handle all of their affairs. In that situation, the person may voluntarily ask the court for approval of a guardian to assist in needed areas.
In some cases, a person is just not capable of making decisions that are in their best interests. In that case, legal proceedings can begin with the goal of declaring the person incapacitated. If this is accomplished, the court then assigns a guardian. Many times, this occurs over the objection of the subject of the potential guardianship. It is then up to the court to decide, after careful consideration and testimony from qualified medical professionals, whether a guardianship is appropriate.
Who Can be a Guardian?
Many people think a guardian must be a trusted family member or friend. However, this is not the case. Under Florida law, the following people, businesses, and organizations can perform the duties of a guardian:
- Most residents of Florida;
- A nonresident spouse;
- A nonresident parent or child;
- Nonresident relations;
- Banks, savings and loan associations, etc.;
- Nonprofit corporate guardians;
- Health care providers in certain cases; and finally
- For profit corporate guardian businesses who have met certain requirements.
If You Have a Loved One in Need of Guardianship
If you have a loved one you think may need a guardian, don’t go it alone. At Doane&Doane, we offer expert assistance in guardianship matters. We recognize this is a difficult time. Let our experienced attorneys take on the difficult task of navigating the court system, while you focus on your loved one’s needs. Contact us for a free consultation at 561-656-0200.