Guardianship Basics for Caregivers

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No one wants to see a loved one become sick and unable to make decisions for themself. This often happens where a aging parent or relative is diagnosed with dementia or some other condition that prevents that person from being able to take care of themself. If this happens, caregivers can file a petition with the court to appoint a substitute decision maker, called a “guardian.” A guardian is only appointed as a last resort if other, less restrictive, alternatives are not in place or are not working. Less restrictive means include a power of attorney and/or an advanced health care directive.

Guardianship petitions are normally filed in the ward’s county of residence. A “ward” is the person who needs help, and therefore is the subject of the case. The ward is entitled to notice of the case being filed and to be present at court hearings. The proposed ward is entitled to legal representation at the hearing, and the court will appoint an attorney if needed. The court will also appoint an examining committee of three people (two licensed care social workers and one doctor) to evaluate the ward and submit a report to the court. The committee requirement is designed to make sure the neutral independent people, with the ability to evaluate the ward, provide the court with unbiased information.

A court hearing will be held once the evaluations are complete. At the hearing, the court will first determine if the proposed ward is incapacitated. This will require an examination of the examining committee’s reports as well as evidence offered by the petitioner, as well as the ward’s attorney. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian. A guardian can be any competent adult — the ward’s spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). Also, the ward may have previously designated a particular person to serve as their guardian in the event of incapacitation. That decision will be given great weight.

In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward’s life — people who are both aware of and sensitive to the ward’s needs and preferences. If a guardian is appointed, the guardian will need to file annual reports with the court to provide information about the ward’s health and property.

A Florida elder law attorney can help you if you need to request a guardianship over aging parents or another person. We at the Wheeler Firm have years of experience handling guardianship cases. Please contact us for more information at (850) 613-6923.