Unfortunately, many of us will lose mental capacity to make decisions at some point during our lifetimes. If this happens, someone will have to take care of you and make all decisions on your behalf. This is not an automatic process, and it is not enough for someone to approach a doctor, banker, social worker, etc. saying that they are your son/daughter/niece/nephew etc., and that they are the ones responsible for you.
In most cases a person will have to go through the court system in order to become legally capable of taking care of you. This type of case is called a Guardianship, and first requires a finding that you are mentally incapacitated.
After a Petition to Determine Capacity is filed, the Court will appoint a panel of experts charged with the responsibility of evaluating you, and determining whether you are, in fact, mentally incapacitated. If you are, then you will become a “Ward” and the Court will appoint someone to serve as your legal guardian.
There are different types of guardians, including:
- a guardian of the person (only responsible for your life and well-being decisions),
- guardian of the assets (only responsible for making financial decisions), and
- a plenary guardian (responsible for making all decisions on your behalf).
Under the Court’s supervision, the guardian will be able to make decisions that affect you.
Obviously, this is a somewhat complicated and long process requiring the Guardian to file with the Court annual reports regarding the Ward’s well-being, and annual accountings regarding the Ward’s finances.
When considering a guardianship, Florida courts must consider the lesser restrictive alternative to guardianship, and for this reason, they will try to avoid guardianship whenever possible. As discussed in greater detail above, there are steps that you can take in order to avoid and/or limit a guardianship.
- If you have a “Designation of Health-Care Surrogate” and a “Durable Power of Attorney”, you may be able to avoid a guardianship altogether since these documents already appoint individuals who can make healthcare decisions and financial decisions on your behalf.
- If you did not prepare a “Designation of Health-Care Surrogate” but did prepare a “Durable Power of Attorney”, the Court will likely appoint a Guardian of the Assets only, and will allow the person holding your “Durable Power of Attorney” to make financial decisions.
- If you did not prepare a “Durable Power of Attorney” but did prepare a “Designation of Health-Care Surrogate”, the Court will likely appoint a Guardian of the Person only, and will allow the person holding your “Designation of Health-Care Surrogate” to take care of you.
- If you did not prepare either of these documents, but you do have a “Designation of Pre-Need Guardian” a guardianship will still be established, but your designated person will be appointed as your guardian. Otherwise, the Court will select one for you. This may be a relative, friend, or even someone who does not know you.
We strongly recommend that you prepare the necessary documents in order to avoid and/or limit a guardianship.
The Law Offices of Pelayo Duran, P.A. can assist with the initial steps of getting a guardian appointed, and can also assist with the guardian’s ongoing reporting requirements.
As parents, we are the natural guardians of our children. But when the child turns 18, he/she automatically becomes emancipated, capable of making their own decisions. Parents of children who are developmentally disabled may have the need to maintain some control over their children’s lives, but may not want to go through a traditional guardianship. The state of Florida has tools available for those circumstances. You may seek to become your adult child’s “Guardian Advocate” which would allow you to assist with some, but not all, of your child’s activities of daily living. The main benefit to going through the guardianship advocacy process rather than a traditional guardianship is that your child will not need to be determined “incapacitated”. Another benefit is that this is a simpler process. If your child’s condition later improves, and no longer needs you as their advocate, his/her rights can eventually be restored. The Law Offices of Pelayo Duran, P.A. can assist you in petitioning the Court to become your disabled child’s guardian advocate.
Designation of Pre-Need Guardian
If you become incapable of taking care of yourself due to mental incapacity, you want to make sure that you have someone that will be able to legally take care of you. Again, this should be someone who loves you, and who will make decisions that are in your best interest. The benefit of preparing a Designation of Pre-Need Guardian is that you can choose that person yourself, rather than having the court choose someone who may or may not actually have your best interest at heart.