Home :: Attorneys :: William W. Sunter :: March 2009
The Basics of Incapacity And
Guardianship
By: WILLIAM W.
SUNTER
March 2009
Many people who move to Florida for retirement anticipate many years in
beautiful weather and well-earned rest. Most people do not anticipate
that they or a loved one may suffer physical or mental incapacity. Loved
ones can find the guardianship process confusing and stressful, because
they have no idea what to expect. In this newsletter, I hope to provide
the framework of what a guardianship is and how a family member would
proceed with a guardianship.
A guardianship is normally necessary in
the care of an incapacitated individual (the “ward”). In many cases, the
guardianship can be avoided if a ward has prepared the proper estate
planning documents prior to incapacity. An individual’s rights are
divided into two categories: the rights of the person and the rights to
or concerning property. A guardianship of the person allows you to make
all the decisions regarding that person’s personal decisions, such as
normal healthcare decisions, while a guardianship over the property
allows you to make all decisions regarding the assets of the
incapacitated. A non-Florida family member or a Florida resident
regardless of relationship can be the guardian of the ward.
After a petition has been filed with
the court to determine an individual incompetent, the court will appoint
a panel of three individuals, called the “examining committee,” that
will make recommendations to the court as to the mental and physical
abilities of the ward. The examining committee is made up of a doctor as
well as other healthcare professionals or a social worker that has
examined the ward. Additionally, the court will appoint an attorney to
represent the ward called an “elisor”. The elisor will serve the
petition for incapacity on the ward and will represent him or her
throughout the entire process. At trial, the court will hear the
recommendation of the examining committee as well as other witnesses,
and if it finds the ward incompetent, a guardian will be appointed.
If the court grants a guardianship on
the petition, the guardian has the responsibility of providing an
accounting to the court of all of the assets of the ward as well as an
accounting of the day-to-day life of the ward. The guardian of the ward
has the obligation to continue to provide an accounting of the person
and the property for the rest of the ward’s life, or the length of
guardianship, which can be a very detailed process.
If you or a loved one require
assistance in establishing, defending, or maintaining a guardianship, or
need to take steps to avoid a guardianship, please contact an attorney
for further details.
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