At Yergey and Yergey, P.A., we have been handling guardianship matters for over 20 years. In Florida, a guardian can be appointed for a person if the person is determined to lack mental capacity. A guardian can also be appointed for a minor child under the age of 18 who has not been emancipated. Additionally, a person can voluntarily submit to a guardianship. The guardian can be appointed as Guardian of the Person, Guardian of the Property or Guardian of the Person and Property.

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Guardianship over a Person Lacking Mental Capacity

 

Incapacity Proceeding

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The first step in most guardianship matters is determining whether the alleged incapacitated person (“AIP”) does, in fact, lack mentally capacity. During the incapacity proceeding, an attorney is appointed by the Court for the AIP. An “examining committee” consisting of three persons is also appointed. Each examining committee member meets with and examines the AIP and decides whether he or she believes the AIP lacks mental capacity. If the examining committee members find that the AIP does lack mental capacity, he or she will decide whether the AIP needs a limited guardianship (i.e., the AIP has some mental capacity and retains certain rights or whether the AIP needs a plenary guardianship (i.e, the AIP has no mental capacity and no rights are retained by them).The Incapacity Proceeding (i.e., a court hearing) is then held and based on the examining committee members’ reports and testimony taken during the hearing, if any, the Court decides whether the AIP should be declared legally incapacitated. If the Court decides that the AIP does lack mental capacity, a guardian will need to be appointed.

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Guardianship Proceeding

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If the AIP is declared legally incapacitated, he or she is then known as the “Ward” in the guardianship proceeding. A guardian is then appointed for the Ward. The guardian can be appointed as Guardian of the Person, Guardian of the Property or Guardian of the Person and Property. A Guardian of the Person may make decisions for the Ward, such as, where the Ward should live. A Guardian of the Property makes decisions about the Ward’s finances and property. Many times the same person serves as Guardian of both Person and Property.

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Guardianship over a Minor Child

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In a case involving a minor child, the child is presumed to lack capacity. Therefore, there is no need to go through the mental incapacity proceeding. Otherwise, the guardianship is otherwise virtually identical to a guardianship involving an incapacitated person.

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Voluntary Guardianship

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Sometimes a person will voluntarily submit to a guardianship. In those situations, there is no incapacity proceeding. In fact, the person is presumed to have capacity. Otherwise, he or she would not be able to have the ability to agree to the guardianship.

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Guardians must be Represented by an Attorney

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Florida law requires that anyone appointed as a guardian for another must be represented by a licensed attorney. A guardianship attorney helps the guardian handle the court requirements, such as annual accounting, inventories and annual plans. At Yergey and Yergey, P.A., we can help walk you through this seemingly intimidating process.

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Guardianship Administration

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At Yergey and Yergey, P.A. we help families with all aspects of Incapacity and Guardianship proceeds. We will:

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• Determine that a guardianship is the least restrictive alternate available for the alleged incapacitated person and verify the need for a guardian

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• For minors, quantify the proper form of guardianship needed for the circumstance

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• Qualify the potential guardian and, if necessary, recommend appropriate Professional Guardians

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• File all appropriate documents with the court to support the petition to determine incapacity and petition for the appointment of guardian, including any emergency petitions which may be appropriate and necessary.

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• For minors, complete all required steps to approve any and all settlements and file appropriate documents with the court.

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• Inform all interested persons of the proceedings as required by law.

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• Present the petition to determine incapacity and petition for the appointment of a guardian and supporting evidence in court.

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• For minors, present the appropriate petitions, including settlements, in court.​

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• Assist and complete the establishment of court ordered depositories, appropriate transfers of assets into the guardianship, and marshalling of all assets.​

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• Guide and monitor the performance of the guardian as a fiduciary, including any and all required Guardianship training courses.

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• Assist the guardian in completion of the annual requirements of a plan and/or accounting.

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• Assist with Guardianship litigation concerning breach of fiduciary duty, removal of a guardian, or suggestion of capacity of the ward.

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• At the appropriate and required time, assist the guardian in the termination of the Guardianship, whether due to death or for minors, obtaining the age of majority and discharge of fiduciary duty.

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Guardianship Litigation

 

At times, friends or family members disagree on one or more issues in a guardianship, such as, who should serve as the guardian, whether the guardian is appropriately carrying out his or her duties, etc. We are experienced in guardianship litigation matters as well.

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Guardianship can be a valuable means of protecting vulnerable family members from exploitation. While we can never guarantee the result of any one case, the experience and good judgment of our attorneys can assist you in determining whether guardianship is appropriate for your family member. Contact Yergey and Yergey, P.A. at (407) 843-0430 or click here to schedule an appointment to review your family situation and explanation the various options available to you.