The elder care lawyers of Lyons, Beaudry & Harrison, P.A. in Sarasota, Florida advise individuals who are considering becoming legal guardians of incapacitated adults. We often hear the following questions from our clients:
Guardianship is an arrangement in which one person (the guardian) is given legal authority to make decisions on behalf of another person (the ward). Guardianship may be granted over a minor or an incapacitated adult. An appointed guardian has power over the ward’s finances and/or personal decisions, such as the medical care the ward receives. The guardian’s decisions must be made in the best interests of the ward. Guardianship can only be granted if there is no less strict alternative, such as a temporary power of attorney, appropriate for the circumstances.
Most adult residents of Florida are eligible to serve as legal guardians. A nonresident of Florida can serve as a guardian if they are a blood relative, spouse or adopted child of the ward. Institutions can also serve as guardians, but the power of an institution is limited to decisions about the ward’s property.
A person who has been convicted of a felony cannot serve as a guardian. The right to be a guardian is also denied to any person found by a court to be incapable or unsuitable to discharge the duties of a guardian.
An adult can only be considered incapacitated under Florida law if his or her ability to make decisions is substantially impaired. The intended guardian cannot simply claim that another adult is impaired. Within five days of the time a petition for the determination of incapacity is filed in court, the court will organize an examining committee consisting of two medical professionals, at least one of whom must be a physician or psychiatrist, and a third person who is qualified to provide an expert opinion to the court. The examining committee will require the intended ward to undergo applicable assessments of physical, mental and functional health. Each committee member files a report with the court, stating an expert opinion that the intended ward is either incapacitated, partially incapacitated or not incapacitated.
A Florida court can grant limited guardianship or plenary guardianship. Limited guardianship is granted when the ward is found to be partially incapacitated. A person is partially incapacitated if they are capable of completing some but not all tasks needed to care for themselves and manage their financial assets. Plenary guardianship is total guardianship, wherein the guardian has the right to exercise all delegable legal rights for a ward who is totally incapacitated.
The rights of guardians are limited to what is outlined in the court order granting guardianship. The specific rights that are removed from the ward are transferred to the guardian. These rights may involve decisions about the ward’s medical care, personal care and/or financial affairs. A guardian cannot extend their authority without a new court order.
The guardianship process may take as little as 33 days from the date of filing the petition for the determination of incapacity to the adjudicatory hearing where a court decides whether to grant limited or plenary guardianship. Factors that could affect the timeline include the examining committee’s decision and whether the intended ward fights the guardianship in court.