Guardianship


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(See Estate Planning- Planning for Incapacity)

            A Guardianship is generally a court procedure in which a Guardian is appointed for an incapacitated person, known as the Ward.   The Guardian can be appointed to manage the Ward's property or person.   

            A Guardianship can be voluntary or involuntary.  If it is voluntary, it can be terminated by the Ward.  If it is involuntary, only the court can terminate the guardianship.   

            The Guardian of a resident of the State of Florida can be a competent person who is 18 years of age or older if he/she is a resident of Florida.  Financial institutions authorized to exercise fiduciary powers in the State of Florida may also act as Guardians of the property. . If the Guardian is not a resident of Florida, he/she must be related to the Ward as described in F.S. 744.309.  If there is no other qualified person to act, the court may appoint a Professional Guardian, a registered and regulated person or business that provides guardianship services. 

             While a person is still competent, he/she may name a Guardian to act in the event of incapacity, by signing a document called "Designation of Preneed Guardian".  This document can be filed with the Clerk of the Court and will be consulted by the court if a guardianship proceeding is instituted.   

            Florida law requires the court to limit a Guardian's powers to those that are required by the extent of the person's incapacity.  The court will hold a proceeding to determine how much of the activities necessary for financial and personal well being the person is not able to perform.  If the Guardian's authority will be limited, he/she is called a Limited Guardian.  If the Guardian has full powers, he/she will be called a Plenary Guardian. 

            "Incapacity" is a term defined in Chapter 744 of the Florida Statutes at F.S. 744.102 (11).   

            Guardianships require court supervision and are usually a more costly form of dealing with incapacity. Every Guardian must be represented by an attorney.   It is necessary to require a court order for each action taken by the Guardian and annual accountings and reports are required.  However, in some cases, the supervision by the court and the powers of the court are useful.  There ways to plan for incapacity and to avoid the necessity of a court supervised Guardianship in order to save time and money.   

            Chapter 744 of the Florida Statutes covers guardianships. See the following link to view this Chapter: http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0744/titl0744.htm

 


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