How Is A Guardian Selected?
If somebody is seeking guardianship over an incapacitated person, the process begins in Florida by filing two legal documents. The first is a petition to determine incapacity and the second is a petition to appoint a guardian. Both legal documents trigger two different court processes and require two different court filing fees. Upon the filing of a petition to determine incapacity, the judge will appoint an attorney for the alleged incapacitated person. The judge also appoints three professionals with a medical background to be members of the examining committee to evaluate the individual’s capacity, and to provide a written report to the judge concerning the alleged incapacitated person’s capacity. Each of the appointed individuals meet the alleged incapacitated person, either in his or her office, or where the alleged incapacitated person is located.
The appointed attorney will be responsible for explaining, as best as he or she can, to the alleged incapacitated person the nature of the proceedings and what kind of legal action the person filing the guardianship is taking against them. The court appointed attorney’s responsibility is to best represent the wishes of the ward about whether to fight the incapacity determination or dispute who would be named as guardian if incapacity is determined by the court. Next, the alleged incapacitated person is evaluated by the three examining committee members who will each have expertise in different medical disciplines. These examining committee members are selected by the court from a list at the courthouse.
The examining committee members are responsible for taking the time to meet with the person, conduct tests, review medical records and talk to other people who may know the incapacitated person in order to complete his or her required report. The examining committee reports are several pages long, and filed with the court for the judge and all participants to review. At the same time of appointing the three examining committee members and the attorney, a hearing date is set that usually occurs between 30 and 45 days of the filing of all the guardianship paperwork. At the hearing on the petition to determine incapacity, the judge will review the medical examining committee reports and will hear any testimony supporting or denying incapacity that any of the parties want to present. In some instances, where the alleged incapacitated person seeks to dispute the incapacity determination, the attorney may bring in examining committee members or additional medical professionals to dispute the examining committee member’s reports. The alleged incapacitated person is allowed to speak at the hearing if he or she chooses.
After reviewing the reports and hearing any kind of evidence presented, the judge will then enter an order determining the extent of the incapacity or determining that there is full capacity. At that time the judge determines the rights, if any, the incapacitated person is able to exercise. These rights, in the Florida statutes, include the ability to choose social environment, the decision to determine residence, the ability to make medical decisions, the ability to manage finances, the ability to gift property, the ability to enter into contracts, the ability to obtain a driver’s license and the ability to apply for public benefits. If the judge determines that the incapacitated person has the inability to exercise any of those powers, then those rights will be delegated to a guardian. After the judge determines the extent of the incapacity then the judge must also determine and evaluate any existing legal documents that could be an alternative to guardianship.
Such legal documents might include a durable power of attorney, living trust or designation of healthcare surrogate. If there is a situation where the incapacitated person can be at harm to him or herself or others, even if the individual has effective legal documents in place, if those legal documents don’t serve the ward’s specific needs, the judge will likely deny those legal documents and still appoint a guardian. If there is no alternative to guardianship, then at that time the judge will have a determination and hearing on a petition to appoint a guardian. If the determination of the guardian is not in any kind of dispute between any of the parties involved or any of the families then at that same hearing to determine incapacity a guardian can be appointed. However, if there is a dispute on who should be guardian, this scenario usually results in a more drawn out and contentious proceeding.
Under Florida Statute 744.2005, the judge has an order of priority on whom he or she can appoint as guardian. The order to decide who can be appointed guardian is very similar to the determination of who gets custody of children in a divorce. The judge looks for who is the best person that can serve as guardian along with the needs of the child and who, if named, is in the best interests of the children. That eventually creates evidence presented by family members that could be scandalous or offensive to certain individuals and cause deep resentment and broken relationships between family members. Ultimately, if the judge is faced with making the determination as to who to select between family members then usually somebody’s feelings will be hurt. This dispute process can be avoided if somebody, when creating estate planning documents, executes a pre-need guardian designation. If done, the incapacitated person named their guardian in their previous legal document, and that individual will have priority over anyone else to serve as guardian.
Lastly, in many cases, disputes among family members over who should be appointed guardian, result in family members agreeing to drop their petitions seeking appointment and have a professional, non-family member to serve as guardian.
For more information on Selecting A Guardian In Florida, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.
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