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Reasons to Establish a Guardianship

a book about guardianship

A guardian is a surrogate decision-maker appointed by the court to make either personal or financial decisions for a minor or for an adult with mental or physical disabilities (referred to as the ward). In Florida, the guardianship process is governed by Chapter 744, Florida Statutes, and guardians are subject to court oversight.

There are three primary reasons you would need to establish a guardianship in Naples, Florida.

An Adult is Incapable of Caring for Themselves.

You may want to establish guardianship if an adult suffers from some type of incapacity that makes it impossible for them to manage their own affairs. It must be proven in court that the adult is incapacitated. There will be a court-appointed exam where the individual’s physical and mental capability is assessed by a medical professional. For example, the court may decide to grant guardianship if a person suffers from severe dementia, is in a coma, or has had a stroke. The court will base its decision on the unique facts of each case. Naples courts will not grant guardianship simply because a person is making bad decisions for themselves.

There are two types of guardianship in Florida: limited and plenary. Courts will award a plenary guardianship when it determines that the ward cannot perform all of the tasks necessary to care for their person or property. In a plenary guardianship, the ward loses all their rights. In comparison, Florida courts will award a limited guardianship if the individual has sufficient capacity to handle some matters but needs help with others. The ward still maintains some rights, and the guardian can only make certain decisions on behalf of the ward decided by the court. The least restrictive form of guardianship is desirable in Florida.

A Minor’s Parents Have Died or Become Incapacitated.

A child’s parents are their natural guardians. If the parents die or become incapacitated, Florida courts will appoint a guardian who will assume all parental rights and responsibilities.

In your will, you can designate who you want to serve as your child’s guardian if you pass away. You can choose whoever you want with limited exceptions. You cannot appoint someone as your guardian if the person was convicted of a felony, judicially determined to have committed abuse or neglect against a child, or found guilty or entered a plea of nolo contendere to any offense prohibited under Section 435.04, Florida Statutes. If you do not appoint a guardian in your will, the court will make this decision.

A Minor Received an Inheritance or Proceeds of a Lawsuit or Insurance Policy Exceeding $15,000.

Florida law provides that the court must appoint a guardian if a minor receives an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000. The guardian takes possession of the property and manages it on behalf of the child. The chosen guardian must complete a background investigation and take a training course before being appointed by the court.

The guardian is subject to court oversight. They must file an initial inventory and an annual accounting detailing the assets and any transactions they have taken on behalf of the ward.

What are Alternatives to Guardianship in Naples, Florida?

In Naples, establishing guardianship can be a lengthy and expensive process. Depending on your situation, guardianship may be unnecessary, and there may be other options available that better fit your needs. For example, if a durable power of attorney is created before an adult becomes incapacitated, the agent will be authorized to manage tax, insurance, and other financial affairs without seeking guardianship.

A second alternative to guardianship is the use of jointly-held bank accounts (and other assets). When an account is jointly held, the co-owner can still manage and access the funds in the account if the other owner becomes incapacitated. However, there are downsides to relying on joint accounts. For example, assets in a joint account are unprotected from a co-owner’s creditors, and there is no guarantee that your joint owner will use the funds in your account for your care. An experienced attorney can help you find the tools that fit your unique needs.

Call A Naples Estate Planning Lawyer

If you have questions about guardianship, you should contact an experienced Naples attorney. Attorney James R. Nici has almost 30 years of experience, is well versed in these issues, and can create an estate plan that fits your needs. Contact our offices today at (239) 449-6150 or use our web form to set up a free consultation.

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