“Life Planning” is the legal preparation for the future possibility of becoming physically and/or mentally disabled. Life planning should be a routine objective of every estate planning practitioner. It is often said that incapacity should be expected in one’s life time and that the extent and duration of the incapacity is the only unknown. Without proper life planning, an individual that becomes legally “incapacitated” may require the need of a court supervised guardianship over the person and his or her property.
Incapacity is defined by Florida Statute 744.102 as …One that is lacking the capacity to manage at least some property or to meet at least some of his or her essential health and safety requirements.
A Guardianship is established when: (1) a family member or loved one becomes incapacitated and is incapable of caring for himself or herself; and, (2) the individual does not have the proper life planning legal documents to avoid a guardianship.
In order to establish a guardianship, a Petition to Determine Incapacity must be filed. The person that is the subject of the petition is referred to as the “Ward”. Typically, the individual filing the petition is a family member, but any adult can file a petition. An Application for Appointment of Guardian is usually filed with the Petition to Determine Incapacity. Upon filing of the petition, the court will appoint a panel of experts to examine the Ward and will also appoint legal counsel to represent the Ward. After the Ward has undergone all mental and physical evaluations, a hearing is held and the court hears evidence from the panel of experts and all other interested parties.
If the court determines that the Ward is legally incapacitated, the court will then rule on any pending Applications for Appointment of Guardian. If the application is approved, the individual will be appointed as the Guardian of the Ward. A Guardian has great responsibility. He or she is legally authorized to act on behalf of the Ward and must ensure the physical care and financial affairs of the Ward.
Guardianships are not limited to incapacitated individuals. Guardianships over the person and/or property of minors are common as well.
The laws and rules regarding guardianships are complex and time sensitive.