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Guardianship Basics Part II: Why do I need a Guardianship in place?

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By: J. Mason Williams IV

A person is typically in need of a guardianship if they have no advance health care directives, cannot take care of themselves or their assets, and they are in danger of hurting themselves or others.  It must be a determination made by the court system, not just a medical doctor, psychologist, psychiatrist, or similar medical professional.

Legally, a person cannot make health care or medical decisions or financial decisions on behalf of someone who is incapacitated.  As a consequence, unless an advance health care directive has been created prior to the person’s incapacity, a guardianship will need to be established to appoint a person to make those decisions for the incapacitated person or ward.

For example, a person who does not understand what they are spending their money on may need a guardian, but a person who is spending their money foolishly, but understands what they are spending it on does not need a guardian.  In the first example, the person lacks capacity to understand what they are doing.  In the second example, the person may be making extremely poor decisions, but understands what they are doing, therefore they have (or likely have) capacity.

As noted above, a guardianship may be necessary for someone who does not have an advance health care directive, such as a power of attorney, trust, or health care surrogate.  A guardianship must be a last resort, because it takes away the incapacitated person’s rights, giving most to the appointed guardian.  If there is a less restrictive means than a guardianship, then the court will find a guardianship is unnecessary.

Guardianships can be necessary for elders, minors, and persons who are developmentally disabled.  When any person, such as an elderly person, loses their capacity to care for himself or herself, a guardianship should be considered.  When a minor loses his or her parents or receives a large amount of money, such as through a personal injury settlement, the minor likely will need a guardian of a minor.  An adult over 18 years old who is determined to be developmentally disabled (defined in Section 393.063(9), Florida Statutes), such as with autism or cerebral palsy, a guardianship advocacy is likely needed.

If you need assistance with a guardianship or similar matter, feel free to contact me. You can also follow me on TwitterLinkedIn and Facebook for even more information.

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