A Basic Guide to the Guardianship Process in Florida
Establishing guardianship over a person in Florida is a two-step process. First, a family member or other interested person must file a petition to determine capacity with the probate court. Then, assuming the court rules that the individual in question is incompetent, it must appoint a guardian.
Step 1: Filing the Petition
To begin the guardianship process, someone – typically a spouse or adult child – must file a petition to determine capacity with the probate court. Although the person who files is usually a loved one, non-relatives can also file. Additionally, representatives from various county agencies can file the petition.
Once a petition to determine capacity is filed, the court will appoint an examining committee to review the petition and speak with the individual alleged to be incompetent. This examining committee is made up of three people, one of whom must be a psychiatrist. The other two members can be social workers, nurses, doctors, or another type of professional qualified to give an expert opinion on the individual’s mental and physical state. After reviewing the petition and meeting with the individual and his or her family members and personal physician, the committee must submit its report to the court. If the individual who is the subject of the petition does not have a lawyer, the probate court also appoints a guardian ad litem to represent his or her interests.
After the committee submits its report, the court holds an incapacity hearing. Unless there is a good reason, this hearing must take place within 14 days of the filing of the examining committee’s report. During the hearing, the court hears evidence, including testimony, to determine whether the individual should be declared incompetent.
Step 2: Appointing a Guardian
If the court determines that the person is incompetent, it appoints a guardian. The guardian must be at least 18 years old. Ideally, the guardian should also be a Florida resident, as the guardianship administration process requires a great deal of time and diligence. In Florida, out-of-state residents can act as guardians as long as they are a lineal descendent of the incapacitated person. No matter where the guardian lives, he or she should be a reliable, trustworthy person capable of carrying out all the responsibilities a guardianship entails.
In Florida, guardians must be represented by an attorney. They must also satisfy guardianship training requirements imposed by state law. Because guardians must file regular accounts with the court, as well as oversee the ward’s care and general well-being, serving as a guardian is a tremendous undertaking that should only be taken on by individuals with the time and patience to tend to all these tasks.
Advice for Guardians
If you are thinking of becoming a guardian or have been asked to file a petition to determine capacity for an ailing loved one, it is important to work with a knowledgeable guardianship attorney. Call my office today at (772) 220-9699 to discuss your situation.