Guardianships aren't something that people like to think about because they are usually used after a tragic situation or some other tough time for a family. There are guardianships for both children in need and adults in need.
The Florida statutes require that a guardian be appointed for a minor child when the parents of the child die or become mentally or physically incapacitated to the extent that they are unable to take care of the minor child. The second situation is when the child acquires property valued over the amount of $15,000.00. This could be via an inheritance or an insurance settlement or even a personal injury lawsuit. In both of these situations, the court would appoint a guardian who is then supervised by the court. The guardianship generally lasts until the minor child reaches the age of 18 unless the court terminates the guardianship earlier by court order.
There are also two instances of guardianship regarding adults. There are full and limited guardianships depending on the extent of the need for the person in need. The first type is when a guardian is appointed to assist a person in the management of all of their affairs. The second type is if a person only needs assistance with certain affairs. The guardianship may be voluntary or involuntary.
The Douglas Law Firm will be able to guide you through this difficult time.
DEATH OF PARENT OR THEIR INCAPACITY
Any adult with an interest in the welfare of the child can petition the court to become appointed the guardian of the child under Chapter 744 of the Florida Statues. Parents can make advance preparations and name a "preneed" guardian where they name a party that they desire to be appointed as the guardian of their child in case of their death. The court is not bound by the by the parents’ declaration as the court needs to confirm that the person chosen by the parent meets the requirements under the law. If there is no preneed declaration, then as noted above, any adult with an interest in the welfare of the child can petition to become guardian. This will usually be a family member such as an aunt, uncle or grandparent. In either situation, once the guardian is appointed, the guardian's rights and duties include all of those legal rights as necessary to take care of the interest of the child and the child’s property.
MINOR HAS PROPERTY OVER $15,000.00
The parents of minor children are considered as the natural guardian of their children under Florida law and therefore if the child has property valued less than $15,000.00 there is no need for them to become appointed as guardian under the statute. This changes once the value of the property raises above $15,000.00. In this situation, the court must appoint a guardian to manage the money on behalf of the minor child to insure that the child's interests are protected. The parents will generally be appointed but if not available, any relative can be appointed as guardian for the child. If there are no relatives available for the appointment, then any other party can be appointed as guardian as long as the person is a Florida resident. The basic requirements for becoming a guardian are simple and include no felony record and no court cases which involve abuse, abandonment or neglect of a child.
GUARDIANSHIP RELATING TO ADULTS - Involuntary
One of the toughest situations a family can face is when a loved one needs to be forced into a guardianship. This could be, for example, when a parent is suffering from dementia. In this case, the person requesting an involuntary guardianship must file a petition in the county where the party in need of the guardianship lives. The petition advises the court why the person in need is unable to handle their affairs. It must also include the party to be appointed and their qualifications to serve as guardian. After the petition is filed, the judge appoints an attorney to represent the party whose incapacity is being sought. The statute then requires the judge to appoint an examining committee to assess mental capacity and make a determination.
The examining committee consists of three (3) people and must include a medical doctor. The party that filed the petition may not be on the committee nor can anyone on the committee be related to any of the parties involved in the proceedings. The committee submits their reports to the judge who then reviews the findings of the committee. Based on those findings, the judge will make the decision. If the findings support the lack of mental capacity, the judge will appoint a guardian to assist in the handling of the person’s affairs. The judge can appoint a family member as guardian (the preferred type), a professional guardian (if there is a dispute as to who the guardian should be) or public guardian (if there is no family or friends available for appointment).
GUARDIANSHIP RELATING TO ADULTS - Voluntary
The last instance is when a person recognizes that they need assistance in management of their affairs. In this instance, a person can make a request with the court that a guardian be appointed to assist them with their financial affairs. The only requirement is that the request must be accompanied by a physician’s declaration stating that the person understands the nature of the guardianship and is in need of assistance in handling their affairs. Even though the guardianship is voluntary, it is still monitored by the court. The person who has requested that a guardian be appointed has the authority to terminate the guardianship at any time by filing notice with the Court.
The Douglas Law Firm can help
All of the rules and regulations for appointment of a guardian for children and adults are fully detailed in Chapter 744 of the Florida Statues. The attorneys at The Douglas Law Firm can help guide you through the details to ensure that the interests of you and your family are protected no matter the situation. Give us a call today for a complimentary consultation (800) 705-5457.