The Miller Elder Law Firm explain the types of guardianships. For more help on setting up a guardianship or determining which guardianship is right for your situation, contact The Miller Elder Law Firm today.
“There are several different kinds of guardianships. There’s what’s called a full guardianship, which is a two-step process in the state of Florida. What happens with a full guardianship is: a petition is filed to determine if someone has capacity or not. The judge then appoints an examining committee to examine the individual and determine whether or not they have capacity. They will do a physical exam and a mental exam.
If the person does not have capacity…and it can be in all areas or in limited areas. For example, can they determine their residence? Can they decide their healthcare decisions? Can they manage their money? The examining committee will tell the court, in each of these areas the person can or cannot make decisions. If they cannot, the court will remove the person’s rights in those areas and determine them incapacitated.
If they are incapacitated and they’ve never named a power of attorney or a healthcare surrogate to manage their affairs, then the court will appoint a guardian to manage their affairs. In Florida, a guardian has to be over the age of 18, either related to the individual by blood or live in the state of Florida, and never have been convicted of a felony. If all those are met, then the person will be named the guardian, and they will manage the affairs of the person who is incapacitated. So that’s a full guardianship.
In Florida, there are also what’s known as a guardian advocacy. That’s a special kind of guardianship which the legislature has said you can do if your individual has one of five developmental disabilities: spina bifida, cerebral palsy, Prater-Willie syndrome, autism, and mental retardation. If you have one of those five developmental disabilities, you’re going to qualify for a guardian advocacy.
What will happen is: there will still be a court hearing. You will go in and prove to the judge that your loved one has one of those diagnoses, of one of those five developmental disabilities, and that because of that diagnosis, they are impaired and cannot make decisions in certain areas. Those areas could include personal decisions such as residence, social, travel, education, employment, medical. It could also include financial decisions, the right to contract, the right to manage money, to buy property, all of those kind of things.
So you have to offer testimony to the court showing that the individual, because of that developmental disability, cannot manage his affairs in those areas. And if the court finds by clear and convincing evidence that they cannot, they will appoint a guardian advocate to manage the affairs of the person with the developmental disability in those areas. Again, to be a guardian advocate, you have to be over the age of 18; either be related to the individual by blood, or live in the state of Florida; and you have to have never been convicted of a felony.
If you qualify, you will be appointed guardian advocate to make decisions for that person in those specific areas. Each year, you’ll file a plan with the court, and you’ll also file an accounting if there’s any money involved, so that the court can monitor that you are indeed taking care of this individual.”
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