The first step in setting up a guardianship is determining whether a guardianship is appropriate. Things to consider include whether the individual possibly needing a guardianship (“Alleged Incapacitated Person”) has any advance health care directives or already has a guardianship in place. Next the type of guardianship you believe is necessary should be determined, i.e., Guardianship of a Minor, Guardianship Advocacy, etc. If a basic guardianship is the choice, then two petitions must be filed with the Circuit Court where the Alleged Incapacitated Person resides. These petitions start two separate cases.
The first petition is a Petition to Determine Incapacity. Just like it sounds, this petition is requesting the Circuit Court to find the Alleged Incapacitated Person to be legally incapacitated (essentially legally incompetent). If the Circuit Court makes the determination that the Alleged Incapacitated Person is legally incapacitated, then the Circuit Court has determined that a guardianship is necessary. The Circuit Court will then look to the second Petition (and consequently the second case) to help determine who should be the guardian.
The second petition is the Petition to Appoint a Guardian. Once the Alleged Incapacitated Person is determined to be legally incapacitated, the Circuit Court will try to determine what rights to take away from the Alleged Incapacitated Person, i.e., right to vote, right to contract, right to make financial or health decisions, etc. The Circuit Court will also determine who should be appointed the guardian to take over all or some of those rights.
Two cases are necessary under a basic guardianship. Some types of guardianships, or similar proceedings, such as a guardianship advocacy, may avoid the need for at least the initial case and the Petition to Determine Incapacity, which is one reason it is important to talk to an attorney about the best course of action prior to filing any petitions. In addition, once appointed, an attorney is required by Florida Probate Rule 5.030(a) for the guardian.
If you need assistance with a guardianship or similar matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.
