Guardianship Administration

Miami guardianship attorney Randy A. Bryant is well known in the field of Florida guardianship law. With over a decade of experience in guardianship and estate planning, Mr. Bryant is well versed in the intricacies of guardianship administration, and has assisted many clients in obtaining a guardian for their or loved ones or representing the client as the guardian.

Guardianship proceedings in Florida are used to appoint a guardian for individuals who are deemed incapacitated and unable to take care of themselves. However, before a guardian can be appointed, a court must first determine that an individual is in fact incapacitated and in need of assistance. Thus, the first step in the guardianship administration process is the filing of a Petition to Determine Incapacity. According to Florida statutes, any individual may petition the court to determine the incapacity of another individual. This petition must be filed in the guardianship court of the county where the allegedly incapacitated person lives. A Petition to Determine Incapacity requires that the petitioner identify the individual of concern and provide details as to why they are believed to be in need of a guardian, including the rights that the allegedly incapacitated person is incapable of exercising. The petitioner must then identify him or herself and sign under oath that the enclosed details are correct. If the petitioner is later found to have filed a frivolous petition or abused the guardianship process, he or she can be held responsible for any attorney’s fees incurred during the subsequent court proceedings.

After the Petition to Determine Incapacity is filed with the court, the court will appoint an examining committee to examine the alleged incapacitated. Guardianship committees are required to have three members, one of which must be a psychiatrist or physician. The other two members must also be individuals with expertise on the issue of incapacity, including psychologists, doctors, nurses, licensed social workers, or those specializing in geriatric issues. Each member of the guardianship committee must individually examine the allegedly incapacitated person and submit a report on their findings of incapacity or lack thereof.

In addition, the court will also appoint an attorney to represent the alleged incapacitated in the incapacity proceeding to ensure the individual’s rights are protected. The court appointed counsel will represent the individual until the case is dismissed, or, in the event of incapacity, through the filing of the Initial Plan of the guardianship.

After the guardianship committee completes its work, the court will hold an incapacity hearing with the petitioner and the individual of concern. At this hearing, the petitioner may present evidence on the issue of incapacity, including witnesses and any relevant documents.

Once the court has considered all of the evidence provided at the incapacity hearing and the reports of the guardianship committee, the court will make a determination regarding the alleged incapacitated’s capacity. According to Florida law, if the court finds by clear and convincing evidence that a person is (1) incapacitated and (2) that there is no alternative to guardianship, then the individual of concern must be deemed incapacitated for guardianship purposes.

After the determination of incapacity is completed, the guardianship court will move to appointing a guardian for the incapacitated person. Anyone who the court deems “qualified” may be appointed as a guardian, although preference is given to close relatives. In determining whether an individual is qualified, the court will consider

• Education
• Ability to manage finances
• Any wishes expressed by the incapacitated person
• The unique needs of the individual case

The appointment of a guardian will naturally end if an incapacitated individual passes away. However, a guardianship may also be ended early if the incapacitated person is believed to have recovered or regained his or her capacity. In such a situation, a suggestion of capacity must be filed with the court to reinstate the incapacitated person’s rights. Another examination and hearing will be conducted and a new determination made by the court.

Experienced Florida guardianship lawyer Randy A. Bryant is dedicated to providing clients with the care and support they deserve while working towards a successful resolution of their guardianship needs. If you have a family member or loved one that you believe may be in need of a guardian, the Bryant Law Firm can assist you. To schedule a free consultation to discuss your guardianship matters, call us at 305.456.2777, or contact us online.