A guardianship proceeding is a court proceeding where an individual is appointed to assist an incapacitated person who is no longer able to manage assets, make living arrangements or medical decisions. Typically, a guardianship becomes necessary for a person who is incapacitated and did not have a Durable Power of Attorney prepared while they were well. However, even in cases where the ill person had estate planning documents prepared, including a Durable Power of Attorney, the ill person may refuse to allow the designated agent to help.

It is preferable to avoid guardianship because the court process is time-consuming, expensive and subject to rigid statutory and procedural requirements. Additionally, the process can cause further trauma to the ill person because the person is declared legally incapacitated and will lose the right to personally exercise some or all of his or her civil rights.

Many times, however, a guardianship proceeding is unavoidable and the family or a friend must ask the court to appoint (using an attorney) a legal guardian for the ill person.

There are also different guardianship solutions for persons with a developmental disability. Florida has established an additional but alternate way of providing legal protections for people with developmental disabilities. The process avoids the ruling of “incapacity” however it places someone else (a guardian) in charge of making certain decisions for the disabled person. Each process has specific advantages and disadvantages that should be considered. When a child is becoming an adult, and has developmental disabilities, several areas should be reviewed together. Guardianship protections and options regarding Social Security are two primary areas.

Guardianship of minors is another area that affect people in our State. This may be the result of grandparents raising their grandchildren or because of an injury an inheritance by the minor. It surprises many parents that under Florida law, they need court permission and oversight should their child receive an inheritance or injury settlement over 15,000.