Guardianship is the process designed to protect and exercise the legal rights of individuals who lack the capacity to make their own decisions. David Bellotti is a Professional Guardian registered with Florida’s Statewide Public Guardianship Office.
Guardianship is the process designed to protect and exercise the legal rights of individuals whose functional limitations prevent them from being able to make their own decisions and have no plans in place to do so. Before guardianship is established, it must be determined that the alleged incapacitated person lacks capacity. Guardianship should be the last resort.
Depending on the determination of the court and what will best serve the needs of the ward, the court may appoint a guardian of the person only, a guardian of property only, or a guardian of the person and property.
Professional Guardians are required to have completed 40 hours of State mandated training and 16 hours of continuing education every two years. To be appointed by the court as a Guardian, the professional must have passed a State competency exam, criminal background and credit checks and obtain a $50,000 blanket bond.
The Guardianship Process
A Petition is Filed with the Circuit Court
Any competent adult may file with the court a petition to determine another person’s incapacity. Once the petition if filed, the court will then appoint an examining committee consisting of three members. The examining committee will conduct an evaluation and report back to the court. In addition, the court will appoint an attorney to represent the Allegedly Incapacitated Person (AIP).
A Hearing Is Held
The court will hold a hearing to review the reports of the examining committee. If the court finds the AIP to be incapacitated, the court must then determine if there is a less restrictive alternative to guardianship.
Appointment of a Guardian
If the court determines the AIP is incapacitated and there is no less restrictive alternative, the court will appoint a guardian and issue letters of guardianship. The court may appoint a Guardian of the Person that can manage medical, living arrangements and social interaction, a Guardian of Property that can manage the ward’s assets and estate, or both. While not ideal, the court may appoint separate Guardian of the Person and Property or a Plenary Guardian of both person and property.
Guardianship, Reporting, and Court Supervision
The Professional Guardian is free to make the necessary decisions for the realms appointed by the court following the statutes for Florida Law Chapter 744. The Guardian must submit an Initial Plan of Care and Initial Inventory within 60 days of appointment and annually thereafter along with an annual accounting. The court reviews these plans and can require changes or even a change of the Guardian.
Types of Guardianship
The two most common types of guardianship are limited and plenary. In a limited guardianship the guardian assumes only the delegable rights specifically given by a court order. The person under guardianship (called a ward of the court) keeps all other decision-making rights not specifically outlined by the court. In a plenary guardianship the rights enumerated in Florida law that can be delegated can be applied to the person, their estate, or both.
Responsibility for the following for the ward:
- Determining and monitoring place of the ward’s residence
- Consenting to and monitoring medical treatment
- Consenting to and monitoring non-medical services such as education or counseling
- Releasing confidential information
- Making end-of-life decisions
- Maximizing independence in least restrictive manner
- Determining with whom and under what conditions a person may socialize
Guardianship of the estate or property may include anything that is the subject of ownership, whether tangible or intangible. The court may order the guardian to take control of and be responsible for the following:
- Acting as representative payee
- Determining and applying for benefits
- Obtaining appraisals of property
- Protecting property and assets from loss
- Receiving income for the estate
- Making appropriate disbursements (the guardian may need to obtain court approval prior to the disposition of those assets enumerated in Florida Statute 744.441)
Florida has specific laws governing guardianship proceedings and guardian activities, all of which are designed to protect the interests of the ward. A Florida guardian is accountable to the local court and must report annually on the status of the ward and account for all financial activity.
Title XLIII Chapter 744 of the Florida Statutes controls how guardianships are applied. The statutes can be read online.
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