STORY TOOLS

• E-mail story
• iPod friendly
• Printer friendly

Tell us about it

• What would you add to this story? Tell us what we missed.
• Do you have photos from this event? Documents we need to see? Share with us.
• Upload photos & videos
• More ways to get your stuff online and in the paper.

More It's the Law

• It's The Law: Learn about the new custody provisions in Florida
• It's the law: Can attorney fees be recovered after a legal suit?
• It's the law: Personal injury award can be divided in divorce case

Share and Enjoy [?]

Q: A friend of mine is suffering from Alzheimer’s. His children are fighting over guardianship and the court appointed someone as guardian who was not even a blood relative. Can you explain how that happens?

A: The guardianship you referenced is governed by Florida statutes. A guardian is appointed by the court to act on behalf of an incompetent or incapacitated person. Guardianship can be for the person, the person’s property or both.

A guardian is appointed when the court finds that a person lacks capacity to take care of himself or his property. A guardianship can be limited where the incapacity is limited, but the circumstances you reference generally involve the appointment of a plenary guardian who is a guardian appointed to exercise all legal rights and powers of the ward.

The guardian acts solely within authority granted by the court. Unlike an attorney-in-fact, the ward has the right to reclaim property which the guardian wrongfully transferred to third parties. Although the ward is incapacitated, the ward retains the ability to be sued.

Guardianships are very serious court actions because they remove ability of a person to control himself or his property. When a petition to determine incapacity is filed, notice must be given to the person who is claimed to be incapacitated, the attorney for that person and all next-of-kin identified in the petition.

Within five days after a petition is filed, the court is required to appoint an examining committee of medical, social workers or other persons who could qualify as experts in the case. At least one member of the panel must be a psychiatrist or other physician. No one on the panel may serve as guardian.

Each member of the committee must examine the alleged incapacitated person and submit a written report to the court. If a majority of the committee concludes the person is not incapacitated in any respect, the court must dismiss the petition. Otherwise, the court holds an ad judicatory hearing within fourteen days of filing the reports of the examining committee members, unless there is good reason for delay. The alleged incapacitated person must be present at the hearing, unless waived by that person for good causes shown. Proof of incapacity must be established by clear and convincing evidence, which is a much higher threshold than the usual preponderance of the evidence applicable in civil cases.

A guardian must be a Florida resident unless he or she is a blood relation.

The court is required to give preference to a blood relative or a spouse, although a spouse is not entitled to automatic appointment. The court is also required to consider a person with education or professional business experience relevant to the services necessary, a person who has the capacity to manage the financial resources involved or who has the ability to meet the requirements of the law and the unique needs of the individual case. The court must also consider the wishes expressed by an incapacitated person as to who shall be appointed guardian.

Although relatives are to be considered preferentially, they are not always appointed. In some cases, the relatives have a track record of abusing the ward, lack ability to manage the person or property, or where continued protracted dispute may result. In those cases, and where no relatives are interested in the position, the court may appoint a professional guardian. A professional guardian must meet minimum training requirements, post a bond and submit to a credit and criminal investigation.

Once appointed, the guardian must file a financial report with the court no less than annually. The report must be signed by an attorney as well as the guardian and then there goes audit by the clerk’s office.

Guardianships are expensive and cumbersome. Because they terminate fundamental rights of an incapacitated person, they involve much paperwork and evidence. If a guardian is appointed, the guardian must maintain substantial records and make appropriate filings with the court.

Guardianships are generally required because an individual has no one to care for him or those caring for the individual are abusing him or her. Where a family is willing to take care of an incapacitated person, the results are often cheaper and better. Sadly, many of the family cases result in a guardianship because of abuse.

---

William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.