Guardianship is an area of law that is required when either of two sets of circumstances occur, both of which involve questions about who is providing care to people who can’t legally care for themselves. In both cases, the purpose of the guardianship is to establish who will make important personal and/or financial decisions for someone who cannot make these decisions for themselves.
When the care of a minor is involved
When both parents of a child under the age of 18 have passed or become incapacitated, and there is no guardianship established and no will – or no directive is provided in the parents’ will or wills – the care of the child is determined by the court. Guardianship is one of the most important reasons to have a will. However, people often think of a will as a tool that only covers assets or money, so they mistakenly believe that they don’t need a will if they don’t have a lot of wealth.
Under Florida law, any adult can petition the court to be appointed guardian of a child if the parents have passed away or are incapacitated. If, however, the parents have already nominated a “pre-need” guardian, which is done by filing a declaration with the court identifying the parents’ preference, the court simply makes sure that the nominated guardian is qualified to act in the best interests of the child. That said, it’s important to note that the court is not bound by the parents’ preferences and will still need to make a legal determination.
When an adult is not legally competent to care for himself or herself
When a person who is a legal adult of age 18 or older is incapable of making prudent decisions about their finances or personal care, a guardian may be appointed to make some or all those decisions, depending on the individual’s level of competency. The appointed guardian is responsible for investing any assets responsibly for the purpose of providing support to the ward under their care. The guardian is also required to file detailed annual reports with the court and, for some financial transactions, obtain prior court approval.
The guardian also performs tasks related to personal care, which may include taking the ward to doctor’s appointments, providing care for the ward’s personal hygiene needs, and determining where the ward should live based on what is in his or her best interests. The guardian is also required to provide an annual physician’s report to the court, along with a detailed healthcare plan.
When I am working with families dealing with guardianship questions, my job is to look after the interests and wishes of the family, including the best interests of the person in need of guardianship. These can be stressful situations for families and I always keep that in mind, striving to reduce the stress wherever possible.
At Nexus Legal Solutions, an initial consultation is always free and informative, and is a service we’re happy to provide. For more information, please call 407-900-7722. Or visit our Contact Page and we’ll get back to you as quickly as possible.