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Guardianship

Overview

At Kelley Kronenberg, we understand the difficulty of dealing with a loved one who is unfit to care for themselves. There are some situations in which guardianship may be the only way to ensure your loved one is safe and protected. In some cases, guardianship may be necessary to make sure your loved one’s best interests are protected if they are being physically abused or financially exploited.

We recognize that the decision to seek guardianship is not an easy one. Guardianship is a complex process with both practical and legal challenges, and a combination of serious personal, emotional, and financial implications—Don’t face it alone. Our attorneys can help you understand your legal options as a family member, loved one or friend, so that you can make the best decision for your situation.

With over a 40-year legacy and decades of combined experience, Kelley Kronenberg‘s attorneys have the knowledge, skills, and experience to handle any guardianship situation which may arise, including:

  • Guardianship of a Person: the guardian can only make decisions on behalf of the ward regarding medical care, lifestyle, and well-being
  • Guardianship of Property: the guardian can only make decisions on behalf of the ward regarding the ward’s assets (i.e., manages money, property, pays bills)
  • Plenary Guardianship: the guardian may exercise all legal rights and powers of the ward (person and property)
  • Limited Guardianship: the guardian may only exercise legal rights specifically designated by the court as the ward is able to exercise some but not all, of their rights
  • Temporary/Emergency Guardianship: short-term or temporary guardianship is only used in emergencies situations (i.e., a person is in imminent physical danger)

What is Guardianship?

Guardianship is a legal proceeding in which a guardian is appointed by the courts to exercise the legal rights of an incapacitated person (the “ward”).

Any Florida resident that is at least 18 years old and certain relatives that are not Florida residents, may serve as the guardian. No person who has been convicted of a felony or incapable of discharging the duties of a guardian may be appointed.

Fees and costs of guardianship are often reimbursed by the ward if they have the assets or income to do so, and court approval is secured.

Establishing Guardianship

Any adult may file a petition with the court to determine another person’s incapacity, setting forth the factual information upon which they base their belief that the person is incapacitated. The court then appoints a committee of three members, usually two physicians and another person who by knowledge, skill, training or education, can form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.

If the examining committee finds the person is unable to exercise certain rights, however, the court holds a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship—a power of attorney or health care surrogate—that adequately address the person’s needs.

Terminating Guardianship

The court must enter an order of discharge before the guardian can be relieved of their duties. Discharge of any guardian of the property requires the filing of accounting and proof that funds were used for the benefit solely of the ward.

There are several situations in which a guardianship can be terminated, both voluntary and involuntary, including the ward’s capacity and rights are restored, ward moves out of state, the guardian is removed or resigns, exhaustion of the ward’s assets, the ward cannot be found, a minor ward turns 18, or death of the ward.

Our guardianship attorneys understand the sensitive nature of these cases and are here to help guide you through this difficult time. We are committed to advising our clients through this complex process while supporting and keeping you informed every step of the way.