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A closer look at establishing a guardianship in Florida – II

Last time, our blog began discussing how those with serious concerns about the ability of loved ones to care for themselves and/or manage their assets can seek what is known as a guardianship under Florida law.

We also began discussing how any appointment as a guardian under Florida law is conditioned on the filing of a petition by the concerned party and, more significantly, a finding by the court that the person in question is incapacitated.

Once a guardianship petition is filed, the court will appoint a three-person committee to conduct an examination of the purportedly incapacitated person that consists of a mental health evaluation, a physical evaluation and a functional assessment.

After this is completed, committee members will submit a report summarizing their findings and offering an opinion as to whether the person is indeed incapacitated.

The committee members typically include two physicians and another person capable of rendering an expert opinion by virtue of their education, training, skill or knowledge.

In the event the majority of committee members determine that the person under examination is not incapacitated to any degree, state law dictates that the presiding judge must dismiss the petition.

However, in the event committee members determine that the person may indeed be unable to care for himself or herself in any respect, a hearing will be scheduled to determine whether the person is only partially incapacitated or totally incapacitated. In the absence of a lesser restrictive alternative, a guardian will likely be appointed at the end of this hearing.

It is important to note that the person alleged to be incapacitated will be appointed their own attorney to protect their interests at the outset of the proceedings. In fact, the person can even elect to replace this court-appointed attorney with their own counsel.

We will continue this discussion in future posts.

Please consider speaking with an experienced legal professional if you would like to learn more about guardianships or other estate planning tools.



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