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Navigating Involuntary Guardianship

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When a family member or loved one is believed to be unfit to make his own decisions, one may elect to file a petition for involuntary guardianship in Florida. However, securing this guardianship isn’t a simple task. Doing so calls for the help of an experience probate attorney and the ability to prove the person in question is in fact incapable of retaining control over his/her property and legal decisions.

Proving Lack of Capacity

Before attempting to demonstrate a lack of capacity in court, one must understand what exactly the court’s definition of this term is. In short, this essentially means the individual is unable to make decisions by reason of physical or mental incapacitation. Yet, the situation isn’t always so black and white. Therefore, there are two kinds of guardianship the court may decide to appoint: full or limited. Under full guardianship, the person in question is not legally permitted to make his own decisions regarding his affairs. However, with limited guardianship, the limitations on decision-making may only be related to specific aspects of his life.

Before involuntary guardianship in Florida can be granted by the courts, a petition must be filed by someone close to the alleged incapacitated individual. After the petition is filed, a committee will convene to make a legal determination. This committee will be supplied with medical reports from three court-appointed experts, as well as those from other experts upon the request of the person whom the petition was filed against. In addition, evidence such as past medical records and testimony from those closest to the allegedly incapacitated individual is admissible. With this information as a guide, the committee will hold a final hearing to present the official ruling.

The Guardian’s Role

If the person is deemed to be lacking the capacity necessary for making decisions, he will no longer have the right to work, vote, marry, drive, travel, or even apply for government benefits on their own. Therefore, someone else will need to do so for him. This person, appointed by the court, is known as the guardian.

As guardian, one has access to the medical records and treatment of the individual he has been made responsible for, legally referred to as the ward. The guardian will be able to apply for government benefits on the ward’s behalf, as well as oversee his property and enter into contracts in his name. He will also have the power to make decisions regarding the ward’s medical treatment, and determine where he will live. The power the guardian holds extends to the ward’s social life as well, as he will control many of the incapacitated individual’s day-to-day decisions. Finally (and most importantly), the guardian will be responsible for protecting the ward’s rights, and even bringing a lawsuit in his name if necessary.

If you have questions about involuntary guardianship in Florida, our team of skilled Miami probate attorneys are here to help. Give us a call today to get the answers you need.

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