What can you expect if a loved one’s physical or mental health has left them unable to handle their own care? What will you need to do to step in as their caregiver? How does the Florida probate court decide on a guardianship when family members disagree on the need or who should be appointed guardian?
Your mother needs help talking to doctors about her chronic illness. An uncle has dementia and needs someone to handle his bills. You and your siblings agree it is time to take your father’s car keys away. Your grandmother has been scammed for several hundred dollars, again. Your son was in a severe accident and needs someone to manage his care.
There are many reasons why you may be heading to the Florida Probate Court to seek a guardianship. They all have two things in common:
However, in many cases, there is a third person involved: someone who believes they are better able to care for the disabled person than the one seeking guardianship. In other cases, the potential ward (the person being cared for) doesn’t agree they need someone else’s help. These contested guardianships can become some of the most emotional cases in the Florida Probate Court. They leave petitioners and family members wondering how probate judges decide on a guardian.
Generally, each adult has the right to direct his or her own care and financial affairs. But sometimes they are unable to exercise that right because of a physical or mental condition. Before a Florida probate court can appoint a guardian for a person, it must first determine that the person is “incapacitated.” An incapacitated person lacks the capacity to manage some or all of his or her property or meet his or her essential health and safety needs. In other words, an incapacitated person, if left to their own devices, would be unsafe or unable to handle their own affairs.
Once you have filed a guardianship petition with the Florida probate court, the judge assigned to the case will appoint a committee of 3 experts to determine if the person is incapacitated. At least one expert must be a psychiatrist or other physician. At least one must also have knowledge of the type of incapacity alleged in the petition. Each member of the committee is expected to examine the person’s physical and mental health, and make a functional assessment of their capacity. Then they make a report of their findings to the court. If 2 out of the 3 experts conclude the person is capable of handling their own affairs, the guardianship petition will be dismissed.
Incapacity isn’t like a light switch. In many cases it may be a set of different dimmer switches. If your loved one doesn’t agree that they need a guardian, they and their attorney (appointed or retained) can make their case to the judge at the “incapacity hearing”. The judge will consider those arguments and the experts’ reports. If the court determines the person is incapacitated in any respect they become a “ward” of the court, and the judge will consider the least restrictive way to provide for their needs.
A guardianship can be limited or full, temporary or permanent. The judge’s goal is to maintain your loved one’s autonomy to the maximum extent possible, and to appoint a guardian to supplement that person’s care as a last resort where needed.
A guardianship is a formal process and can be difficult to undo once it is in place. Before naming a guardianship over your loved one, the Florida probate court will want to be sure there isn’t a less intrusive option available. In many cases, this means looking for a power of attorney or health care surrogate designation within the person’s estate plan.
These documents grant many of the same rights and responsibilities as a formal guardianship for as long as the person needs it. Should they recover or their condition improve later, they can resume their own care without heading back to court. If those documents aren’t available, or are subject to challenge based on when or how they were created, the court can move on to naming a formal guardian.
Any adult Florida resident can be named a guardian, whether or not they are related to the incapacitated ward. Sometimes an out-of-state relative can also be appointed as a guardian. Professionals or certain corporations can also act as guardian. There are some limits based on a person’s criminal history or capability to do the job of a guardian.
When contested guardianships arise between family members it is usually because of differences in priorities or their understanding of what the ward would have wanted. If the incapacitated person had previously written who they wanted as a guardian, that designation will be honored unless it is contrary to the ward’s best interests. Those same best interests control contested claims to serve as guardian. The Florida probate court judge will need to consider who will make prudent decisions and provide the best care based on the ward’s assets and needs.
Unlike a power of attorney or health care surrogate, a guardian is under the supervision of the probate court. This means the guardian must:
This supervision lasts as long as the guardianship is necessary. If the wrong person is named or the guardian breaches their fiduciary duties to the ward or the court, the judge can remove the guardian and appoint someone new.
Guardianship proceedings aren’t always difficult, but when the potentially incapacitated person or a relative contests the issue, it can put your family’s affairs on public display in the Florida probate court. At Harrison Estate Law, P.A., our experienced estate and probate team can help you consider your options to provide for your loved one’s care, and investigate whether they had taken any steps to designate a decision maker before the need arose. We will help you be sure your family members are provided for when they are no longer able to care for themselves. Contact us here or call 352-559-9828 to get help today.