One of the things we all are concerned about is the possibility that we may become incapacitated. That is, that we may suffer an injury or illness such that we cannot make critical decisions about our property, our assets, our medical treatment, our financial holdings, and overall, our lives.
When it comes to matters before the probate court, in which a Florida court is concerned with the distribution of assets, there are rules in place regarding incapacitated persons. This blog will give you a little overview of the basics of guardianship in Florida. Yet, if you have questions regarding guardianship related to your own personal situation, we welcome you to contact us at Doane & Doane.
The legal professionals at Doane & Doane have, for many years, helped clients with probate, estate planning, and guardianship issues of all types. We pride ourselves on not only being experts in the law, but experts at listening carefully to our clients and making sure their needs are met. All too often, attorneys, particularly with probate matters, forget to keep clients in the loop at every important stage of the process. At Doane & Doane, clients always come first and are involved every step of the way. To learn more, or to get a free case review, please call us at 561-656-0200. We will make sure that you can speak to one of our seasoned probate attorneys.
Guardianship: What is it?
A guardianship is a legal relationship between an incapacitated person and a person who is appointed by the probate court to act as guardian for that incapacitated person. In essence, the guardian makes decisions for someone who cannot make decisions for himself or herself.
The State of Florida gives probate judges the authority to appoint a guardian to make decisions for an incapacitated person regarding such matters as:
- Giving consent to certain medical treatments;
- Arranging for basic necessities like the purchase of food, clothes, cars, and household items;
- Education choices;
- The sale or purchase of property, or other assets; and
- Managing financial accounts.
Now, typically, when we think of an incapacitated person, we think of someone who is suffering dementia, is in a coma, or is otherwise too ill to make rational decisions about their own affairs. That is incapacitation due to health.
However, there are other types of incapacitation. A minor is also considered “incapacitated” in the eyes of the law. In Florida, any person under the age of 18 is considered a minor for whom the probate court would need to appoint a guardian. There are times when a minor has no adult or other family member available to take care of him or her. The probate court will, in that situation, appoint a guardian for the minor.
A person who suffers from an addiction to drugs or alcohol can, in certain circumstances, be deemed “incapacitated” with regard to important decisions as well.
How Are Guardians Appointed?
As you can imagine, the selection of a guardian to make decisions on behalf of someone else is a very important, sensitive task. Therefore, the court must be very careful in selecting an appropriate person who will objectively act in the incapacitated person’s best interests. That is why Florida probate courts will look to people who know the incapacitated person when choosing a guardian.
Accordingly, courts will prefer people to act as guardians who already have ties to the incapacitated person.Those people could include:
- A person already designated by the incapacitated person before he or she became incapacitated. This circumstance is the easiest for the Florida probate court, because it is simply a matter of carrying out the desire of the incapacitated person who thought ahead.
- A spouse.
- A parent or other relative.
- A state employee or private person familiar with the incapacitated person, and/or the incapacity at issue.
In selecting a guardian, the Florida probate court will typically review the prospective guardian’s own physical capacity, history with the incapacitated person, and character. The amount, or lack of, education or financial resources do not serve as disqualifying factors for a potential guardian. Finally, Florida has a specific set of duties and responsibilities for guardians to follow. It is important that guardians are aware of those statutory responsibilities.
What Are the Ways in Which to Establish My Own Guardian?
Given all the information above, you likely want to know what you can do to pre-select a guardian, in the event you become incapacitated. That instinct is not at all surprising. It makes sense to plan ahead so that you know you can trust the person who may have to handle your most sensitive affairs.
First and foremost, you want to talk to an experienced probate and estate planning attorney before trying to choose a person as your potential guardian. As noted, our probate lawyers at Doane & Doane know precisely how to handle your selection of a guardian. That said, here are some ways that will allow you to establish your own guardian, if necessary, in the future.
- Create a durable power of attorney,
- Designate a health care surrogate,
- Draft a living will;
- Start a revocable living trust and transfer your assets into that trust.
One word about the revocable living trust. That type of asset vehicle will allow you to designate a person who can manage your medical care and your assets if you become incapable of doing so.
Get an Experienced Florida Probate and Estate Planning Attorney to Help You
Making decisions about what happens in the event you become incapacitated is something worth doing. Now that you know what a guardianship is, it is well worth your time to explore how to plan for the future. We at Doane & Doane are Florida’s premier probate and estate planning attorneys. We know how important the guardianship decision may be for you. We are happy to work with you and discuss the best options available. When it comes to drafting the actual paperwork to make your wishes a reality, we will make it easy for you. Call us today to learn more about how Doane & Doane can give you peace of mind. We are just a phone call away at 561-656-0200.