Perhaps your elderly father has been battling dementia, and you need an experienced Florida guardianship attorney to protect him from the perils of financial mismanagement. Or maybe your minor child suffered a concussion in a car accident, and you need to explore your legal rights (and responsibilities) with respect to his situation.
Guardianship is a complex area of law. The Circuit Courts of Florida handle the legal proceedings that establish a guardian to exercise the legal rights of a minor or someone who has become mentally incapacitated by illness, disease, or another problem. In the case of an adult, a judge must determine that the incapacitation impairs the individual’s ability to manage essential health, safety, and property needs. A doctor cannot make this judgment—only a court can do it.
How the Courts Determine Incapacitation
To establish a guardianship, you need to go through a court process and file a petition—through an attorney and based on factual information—stating your case as to why someone should be found incapacitated. The court then appoints a committee of three members, which typically consists of two physicians and one person who has additional knowledge, skill, training or education to develop an expert opinion about the situation. At least one of these three people needs to have knowledge of the incapacity, and all three members of the committee must submit their findings to the court. Their examination typically consists of three parts:
- Physical examination
- Mental health examination
- Functional assessment
Once these evaluations have been done, the committee will make a decision.
The Role of the Florida Guardianship Attorney
If you are filing a petition to determine whether or not a person is incapacitated, you need to hire your own attorney. Bear in mind that your attorney represents you exclusively. Your attorney cannot represent the alleged incapacitated person. Your attorney will submit the petition with factual allegations as to the extent of the incapacity of the alleged incapacitated person. Your attorney will also review the findings of the committee, cross-examine the committee at the hearing, and introduce evidence leading to prove the incapacity of the alleged incapacitated person.
The court will appoint a lawyer to represent the allegedly incapacitated person, who may substitute a different attorney if he or she chooses. Upon examining the alleged incapacitated person, the committee submits its findings. If two out of three members of the committee determined that the person is not incapacitated, the court will dismiss the petition. If the examining committee does determine that the person cannot meet health, safety, and property needs, the court sets a hearing to determine the level of incapacitation: total or partial.
Appointing a Guardian
After this hearing, and if the court agrees that the person lacks capacity, the court can appoint a guardian to assist and care for the incapacitated person, unless an interested person can come up with less restrictive alternative solutions to guardianship. Sometimes, the incapacitated person will accede to what’s happening and cooperate. Other times, however, the person who is incapacitated may resist the process. This can be very painful for family members and caregivers. For instance, your mother with Alzheimer’s disease may no longer be able to safely manage her life or do things like apply for Medicaid benefits, but she may still want to exert her independence. Upon the appointment of the guardian, your attorney may continue representing the guardian and will submit accounting, reports, and plans.
To understand your options to navigate this emotionally and complex terrain, call experienced Florida guardianship lawyer Horacio Sosa today at 954-532-9447 to schedule a consultation.