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Three Types of Guardianships

concept of the 3 types of guardianship. Dad with young daughter

If you have a loved one who cannot care for themselves or you are concerned about your own possible incapacitation in the future, you may have questions about types of guardianships.  Establishing legal guardianship in Florida can be a complicated process if you are unsure of what to do.  Good estate planning can alleviate the need for the Florida court’s involvement in guardianships.

Basically, a guardian is a replacement (surrogate) decision-maker, appointed by the court, to make personal and/or financial decisions for another individual (“the ward”). Guardianship ensures legal protection of an individual’s well-being including the handling of finances and protection of assets from mismanagement or unscrupulous methods. It is a legal process that is used:

  • for when an adult who is suffering from some incapacity cannot make routine decisions and care for themselves
  • for minors who cannot be raised by their parents due to death, incapacity, incarceration, legal order, or other extenuating circumstances.

What are the Types of Guardianship in Naples, Florida?

There are various types of guardianship allowed in Florida but the three main types of guardianship in Naples are:

1. Minor Guardianship

When a child’s parents die or become incapacitated, the court must also appoint a guardian for a minor if the child receives an inheritance or proceeds of a lawsuit exceeding $15,000.

Depending on the child’s needs, the court can appoint a guardian of the person, a guardian of the property, or a guardian of the person and property. A guardian of the person has the authority to exercise decision-making on behalf of the child, such as:

• Enter into contracts,
• Apply for government benefits,
• Sue and defend lawsuits,
• Determine where they live, and
• Consent to medical treatment.

A guardian of the property has the authority to manage a minor’s money and property as delegated by the court. The guardian of the property must have prior approval of the court before selling, transferring, mortgaging, or donating the ward’s property. A guardian of both the person and property would have the power to do both duties.

Name a Legal Guardian: Parents can avoid the need for guardianship if they have set up naming a guardian in case such a calamity were to occur. A key component of estate planning, if you have children, is to name a legal guardian for your kids.  Imagine if both parents died in a car crash or were seriously injured (incapacitated). The legal guardian chosen by the parents would be able to legally step up and take care of the children, without the court’s involvement.  No one expects death or incapacitation so planning ahead allows you to make choices and discuss those choices with a person you trust to take care of your children. Your estate planning attorney can and should discuss this part of your estate plan when you have minor children.

2. Adult Guardianship

According to the Florida Courts, “Guardianship is only warranted when no less restrictive alternative—such as durable power of attorney, trust, health care surrogate or proxy, or other form of pre-need directive—is found by the court to be appropriate and available.” If you have taken steps with your estate planning lawyer to set up things like Durable Power of Attorney, a trust, and health care Advance Directives, you would not need someone to step in and petition the court to set up an adult guardianship. You would have made your wishes known through good estate planning, just in case you became incapacitated through an accident, illness, or senility.

In circumstances where it is warranted, the Florida court will appoint a guardian for an adult if they find the individual lacks the capacity to care for themselves. In Florida, adult guardianship is only permitted if there are no other options available (i.e., durable power of attorney, living trust, or health care directives).

In Naples, adult guardianship can be either limited or plenary meaning absolute. A limited guardianship only permits the guardian to make certain decisions on behalf of the ward. It is appropriate when the ward can do some but not all the tasks necessary to care for their person or property. A plenary guardianship is when the guardian has the authority to exercise all legal rights and powers that can be delegated. It is appropriate when the court determines that the ward is incapacitated and no other options are available.

3. Temporary Guardianship

While the court is determining whether an individual is incapacitated, they may decide to appoint an emergency temporary guardian. Under Florida law, the court should only appoint a temporary guardian in the case of an emergency – meaning if it believes there is an immediate danger that the individual’s assets are at risk of being wasted, misappropriated, or lost unless immediate action is taken. Protecting vulnerable individuals from being taken advantage of is paramount in the court’s decision.

Occasionally a single parent may set up temporary guardianship when they need to be out of the country for an extended period of time such as military deployment.

Call Naples Estate Planning Lawyer James Nici

If you have questions about making sure to properly plan so that adult guardianship is not needed, or to set up legal guardianship documents for your children, please meet with James Nici, a leading Naples estate planning lawyer.

If you have concerns about an elderly parent or other adult loved one who may need protection through setting up an adult guardianship or if a beloved child has lost their parents and the court is looking to set up minor guardianship,  contact our offices as well. We will advise you on this as well as the implications of an emergency temporary guardianship.

James Nici is an experienced Naples attorney with over 25 years of experience. He is well-versed in these issues and can create an estate plan that covers the various options to alleviate guardianship concerns. Contact our office today at (239) 449-6150 or use our web form to set up a free consultation.

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