What are the options if someone doesn’t have the ability to understand the estate planning documents I need them to sign to act on their behalf?
What do you mean I can’t make decisions for my child with special needs now that they turned 18?
My minor child will be receiving a personal injury settlement netting more than $15,000 – the PI attorney said I must have a guardianship. I don’t understand. I’m the parent.
These are just a few examples of scenarios where a guardianship might be necessary. Because every situation is unique, a consultation with a qualified attorney is always the first step to determine if court intervention is necessary. CLICK HERE TO CONTACT US
Guardianships should always be a last resort. We help you explore all alternatives to having the court involved before we make that recommendation.
You may think you planned appropriately by signing documents like a Durable Power of Attorney or Designation of a Healthcare Surrogate, but sometimes the documents are insufficient. In other cases, maybe the individual never had capacity to sign estate planning documents, so we must have the court appoint a decision maker. The need to seek court oversight is generally the result of no advance directives, misuse of powers of attorney, or family conflict.
The Court can appoint a guardian for any person at any age. If the person is under 18, the appointment is generally to manage property the child receives from an inheritance or personal injury settlement. For a person over 18, the appointment is because the individual is unable to manage personal or financial matters.
A Guardian Advocate may be appointed if a person is diagnosed, prior to 18, with an intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome. The disability must be substantial and expected to continue indefinitely. This option is less invasive than a guardianship but isn’t always the best alternative for someone with special needs.
Basics you should know:
Both guardianships and guardian advocacies are court proceedings.
They don’t happen overnight.
They can be costly and invasive.
Guardianships require an attorney to start the process, throughout the duration of the guardianship, and to close it. We pride ourselves on being effective and efficient to keep costs down, but fees and expenses are unavoidable.
Guardianships and Guardian Advocacies take away rights of the individual to act for themselves.
Guardians and Guardian Advocates must qualify to the appointed. It doesn’t matter if you’re a relative. There will still be background investigations and credit checks.
The court will supervise the relationship once you are appointed. There will be certain things you can and can’t do without the court’s permission.
You’ll need to meet an educational requirement.
There will be annual paperwork that will be required to be submitted.
We can help guide you through all these concerns. Together we have over 40 years’ experience in the guardianship community. CLICK HERE TO CONTACT US
Steps for Appointment of a Guardian for an Adult
The legal process for the appointment of a Guardian for an adult starts with a Petition to Determine Incapacity and a Petition to Appoint Guardian. The Incapacity Petition gives the Court information regarding the individual who may be unable to meet his or her personal or financial needs. An attorney is appointed for the individual to provide legal help during the incapacity process. An Examining Committee is appointed to evaluate the alleged incapacity person and to report to the Court. Lastly, there is a hearing to determine if the person is incapacitated.
At the same time, the Petition to Appoint Guardian is filed to tell the Court about the person who is incapacitated and the person who wants to the guardian. If the person is determined to be incapacitated and there are no alternatives to appointing a guardian, then the court will consider the Petition to Appoint Guardian to determine if the guardian is qualified to serve. The court then issues the necessary paperwork for the guardian to act on behalf of the person under guardianship. Court supervision will then continue for the “life” of the guardianship.
Steps for Appointment of a Guardian Advocate
If a person is diagnosed, prior to 18, with an intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome, then the legal process for the appointment of a Guardian Advocate starts with a Petition to Appoint Guardian Advocate. The petition informs the Court about the individual and his or her special needs and who wants to be the Guardian Advocate. An attorney is appointed for the individual. A hearing before the Court determines if the person meets the requirements for appointment of a Guardian Advocate. The court then issues the necessary paperwork for the guardian advocate to act on behalf of the individual. Court supervision will then continue for the “life” of the guardian advocacy.
Steps for Appointment of a Guardian for a Minor
If a child inherits property or receives money from a personal injury settlement with the net over $15,000, a Petition to Appoint Guardian, for property only, is required by Florida law. If both parents die, a Petition to Appoint Guardian, for person only, is filed. Sometimes, there may be a Guardian of Person and Property for a child.