Voluntary guardianship occurs when a person of at least 18 years of age, who is deemed competent, willingly relinquishes their legal rights to make decisions for themselves. Typically, this is because of some physical disability. Voluntary guardianship in Florida is guided by Florida Statute Section 744.341. Guardianship can also transfer voluntarily if a person is older or physically limited and unable to manage their affairs, but is still mentally competent. A guardianship attorney in Orlando, Florida can help you determine if you require involuntary or voluntary guardianship in relation to the particular circumstances.
Adult Guardianship in Florida
Adult Guardianship, also known as conservatorship, is the authorization to represent an adult as their guardian. This allows an individual to make legal, medical, and financial decisions on behalf of another. The granting of powers in this scenario is similar to those awarded through either an advanced health care directive or durable power of attorney, but it is not limited to only a particular matter or set length of time.
If the assignment of a guardian is involuntary, then it is known as a plenary guardianship. A plenary guardianship is one through which the courts have recognized an adult as incapacitated and subsequently have a guardian appointed to them. It is a very specific designation because it excludes any wards that are minors or adult wards that voluntarily apply for guardianship.
Designating guardianship for your minor children in a legal document is always a good idea. You never know what could happen to you or your spouse so protect your family by designating a guardian! You can designate guardians for your minor children in either a Last Will & Testament or a Trust. Our team of experienced estate planning attorneys in Orlando can help establish this or clarify any questions that you may have.
How do you declare someone incompetent for guardianship purposes?
In Florida, a petition must be filed for the evaluation of incapacity. To examine an individual, a committee is formed consisting of three members. At a minimum, it is required that one of the members of the committee be a licensed psychiatrist or physician. The remaining members must be either a psychologist, gerontologist, psychiatrist, physician, registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or another person with knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. The individual’s or family’s regular physician may not be selected for the committee. Also, any member of the judging body may not become the individual’s guardian if they are determined to be incompetent.
Once the committee is formed, they will complete a comprehensive examination of the individual including a physical examination, a mental health examination, and an assessment of functional capabilities. Each member will provide a report and a recommendation for treatment. The two possible outcomes are that the case is dismissed or that the person in question is designated as being incapacitated. The procedures to determine incapacity can be found in Florida Statute Section 744.331.