The Florida court system allows for professional guardians to be appointed for those who are “incapacitated.” As defined by Florida law, a person who is incapacitated is an adult who has been determined by a court to lack the mental capacity to manage at least some of his/ her property or to meet at least some essential health and safety requirements on their own. It’s a process that is outlined in Chapter 44 of Florida Statutes.
As noted by the Florida Bar, any adult can petition the court to decide the incapacity of another person, establishing their case with factual information. As the case proceeds, the court will appoint a three-member committee (typically two doctors and some other expert, depending on the nature of the case). There is usually some type of examination of physical health and mental health as well as an assessment of one’s ability to function. The person alleged to be incapacitated will have an attorney appointed to represent them during these proceedings (though they are free to hire their own, if they choose). After analysis, the panel will submit their own report of findings to the court.
If two of three panel members conclude the individual isn’t incapacitated at all, the judge has to dismiss the petition. However, if the majority finds the person can’t exercise certain rights on their own, the court will schedule another hearing to determine whether the individual is partially or totally incapacitated. At the end of those proceedings, a guardian will be appointed at another hearing, unless there is some other alternative that is less restrictive.
The guardianship process has come under fire in recent years due to allegations that some have been abused and exploited under the system. For instance, last year The New Yorker published an investigation detailing one extreme example. It involved a Nevada couple who came under the control of a public guardian – who was also a guardian for hundreds of other wards over the course of a dozen years. She allegedly built relationships with medical providers and hospitals who referred patients to her, found physicians willing to declare elderly patients incompetent and families often didn’t learn until it was too late that their loved one was under her guardianship and control. She was later removed from the couple’s case after it was discovered she sold their belongings and charged their estates hundreds of dollars an hour. This particular couple ended up losing their home and freedom as they were moved to numerous assisted living facilities and heavily medicated. It wasn’t until the couple’s daughter reached out to media that the guardian was removed, eventually indicted for perjury and theft.
As our Fort Lauderdale guardianship attorneys can explain, there are legitimate reasons why family members should examine whether to seek a guardianship role of a loved one. These can include:
- Lack of access/ ability to manage finances;
- Refusal to receive appropriate care;
- Need for creation or amendment of trusts;
- Vulnerability to financial exploitation.
It can be difficult to identify whether someone with nefarious intent has set their sights on financially exploiting your loved one, but establishing power of attorney may help avoid this (it may even eliminate the need for a guardianship in some cases). One may seek to remove a guardianship by providing a court with prove of undue influence.
Call Fort Lauderdale Probate Litigation Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
How the Elderly Lose Their Rights, Oct. 9, 2017, By Rachel Aviv, The New Yorker
More Blog Entries:
South Florida Attorney Battling Siblings in Fight Over Father’s Estate, May 25, 2018, Fort Lauderdale Guardianship Lawyer