Estate Planning

Guardianship

In what situations are guardianships necessary?
Guardianships are necessary at times for both minors and adults. For minors, a guardianship is necessary if the both parents are deceased or have become incapacitated. Sometimes the parents have designated a guardian in their wills, but often a guardian will have to be appointed by a court. Also, a guardian will be appointed by a court when a minor is to receive more than $15,000 from a lawsuit, insurance policy, or inheritance.  For adults, a guardian will be appointed by the court if the “Ward” (incapacitated person) failed to designate an agent in a Durable Power of Attorney prior to becoming incapacitated.

How does the court know when a person becomes incapacitated?
Any adult may file a petition to determine another person's incapacity.  The petitioner must present factual evidence to support his or her claims. Then the Court will have an examining committee, typically two professionals (physicians, and/or psychologists) and one lay person, evaluate the person's capacity and submit their reports to the Court.  If the court finds incapacity, then a hearing will be set to determine the level of guardianship needed.

What are the different levels/types of guardianships?
There are several levels and types of guardianships, including a guardianship for incapacitated adults or children, a conservatorship for incapacitated adults, a limited guardianship, a voluntary guardianship, and guardianship for purposes of litigation.

What are the guardian’s responsibilities?
The responsibilities of a guardian include deciding where the Ward should live, deciding what medical care services are required, and then hiring the care personnel. The guardian must file an Annual Report and Plan outlining the Ward's condition and progress. The guardian is responsible for collecting the Ward's assets, using them to provide the best possible care for the Ward, and to handle investments for the Ward. The court will monitor investments made by the guardian.

Do I need the services of an attorney as a guardian?
Guardians hire attorneys who serve as the "attorney for record" and submit the court required reports on their behalf.  An attorney may be hired to file a petition for guardianship, to prepare a “Declaration of Preneed Guardian” and other documents for persons who may need guardianship in the future, and to assist a guardian with the winding up of his/her duties.  There are also a variety of instances in which litigation can arise.

Contact our office in Orlando or call 407-447-0601 for a consultation on whether you may be in need of an attorney to handle your guardianship issue.