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Guardianship Basics Part III: Who should have a guardianship set up?

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By: J. Mason Williams IV

A guardianship may be needed for someone who does not have any advance health care directives, i.e., power of attorney, health care surrogate, etc.  Typically, the individuals in need of a guardianship include the elderly, minors, and the developmentally disabled.  When a person decides to petition a court for a guardianship, the individual possibly in need of the guardianship is called the “alleged incapacitated individual.”  In a guardianship of a minor, however, the individual is just the “minor.”  In a guardianship advocacy, the individual is the “developmentally disabled individual.”

In a guardianship, the alleged incapacitated individual must be determined to be legally incapacitated by the court.  This determination is different than when a doctor, psychologist, psychiatrist, or other medical professional determines an individual to be medically incapacitated.  Once a guardianship is determined to be desired, a petition to determine incapacity must be filed with the circuit court.  Immediately following the filing of this petition, an examining committee is appointed to determine whether the alleged incapacitated individual has capacity.  Along with the examining committee, an attorney for the alleged incapacitated person is appointed.  The examining committee consists of three individuals.  One must be a psychiatrist or other physician and the other two must be a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion.

The examining committee quickly visits the alleged incapacitated person, sometimes visits the family physician or other caretakers, and reviews the medical history of the alleged incapacitated person.  Based on the information obtained by each examining committee member, each member provides the court with a report outlining whether the member believes the alleged incapacitated person is total incapacitated, partially incapacitated (with the specific rights the member believes should be maintained), or capacitated.  The court will then hear argument of counsel and possibly testimony (such as from a medical professional, family member, or friend) and determine whether the individual is incapacitated and thus in need of a guardianship.

When it comes to a minor, Sections 744.387, Florida Statutes, and 744.3025, Florida Statutes, provide when a guardianship for a minor or at least a guardian ad litem is necessary.  A guardianship of a minor is necessary when the minor may be able to settle a claim by or on behalf of the minor which exceeds $15,000.00.  A guardian ad litem may also be established to approve (or disapprove the claim) and must be established if the claim exceeds $50,000.00.

As to a developmentally disabled individual, Section 393.063(9), Florida Statutes defines who is eligible for this type of designation and once determined by the circuit court in a guardianship advocacy, no further determination of incapacity, examining committee, etc. is necessary.

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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