GUARDIANSHIP REQUIRMENTS COURT PROCESS Michelle Garcia Gilbert Esquire

GUARDIANSHIP, REQUIRMENTS & COURT PROCESS Michelle Garcia Gilbert, Esquire Gilbert Garcia Group, P. A. Throughout Florida mgilbert@gilbertgrouplaw. com Direct Office: (813) 638 -8920 www. gilbertgrouplaw. com

CONTENTS GUARDIANSHIP GUARDIAN REQUIREMENTS GUARDIANSHIP COURT PROCESS

GUARDIANSHIP Incapacity Proceedings

GUARDIANSHIP When a person of any age is unable to make financial decisions, health care decisions, or social decisions, a guardianship may be appropriate. Frequently, candidates for guardianship are those with dementia, Alzheimers, and other health problems affecting their ability to understand take care of themselves. Florida has a guardianship process that addresses the needs of such individuals. Chapter 744: Guardianship laws Accomplished by having to declare the person incapacitated through a court process

GUARDIANSHIP • Legal process for family members, caregivers, or friends of individuals that may be incapacitated to obtain the legal authority to act on their behalf. • The Court will appoint an attorney to represent the alleged incapacitated person. • There also processes in place for emergency temporary guardians. If the court specifically finds that there appears to be imminent danger that the physical or mental health or safety of a person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.

WHO CAN AND CANNOT BE A GUARDIAN? Requirements

WHO CAN BE A GUARDIAN? • Any resident of the State of Florida who is 18 years old and of sound mind • Non-resident if he or she is related to the Ward by blood, adoption or law according to Florida Statute Section 744. 309(2) • Court may appoint any person whom it considers fit, proper, and qualified to act as guardian whether or not related to the ward • Preference given to a person who: • Is related by blood or marriage to the incapacitated person; Has relevant educational, professional or business experience; Has the capacity to manage the finances involved; or Has the ability to meet the requirements of the law and the unique needs of the individual. • Court shall consider wishes expressed by an alleged incapacitated person

WHO CANNOT BE A GUARDIAN? • No felony conviction • No judicial determination of abuse, abandonment or neglect against a child as defined in Florida Statute sections 39. 01 and 984. 03(1), (2), and (37), OR • Has been found guilty of, regardless of adjudication, or entered a plea of no contest under any similar statute of another jurisdiction can be appointed to act as a Guardian • Provides substantial services in professional or business capacity, creditor • Cannot be employee of agency or company providing services, except if spouse, adult child, parent, or sibling, or court determines conflict is insubstantial and would be in best interest

GUARDIAN REQUIREMENTS • Florida Statute Section 744. 3135 may require criminal background and credit history reports, varies by county and judge • Florida Statutes Section 393. 12(10) and Section 744. 3145 require training by court-approved organization within 4 months of appointment, judges may waive for family guardians • Florida Statute Section 744. 361 and 744. 362 require filing Initial Plan within 60 days of appointment- template provided • Florida Statute Section 744. 367 require filing Annual Plans between 60 -90 days before the end of the last day of the anniversary month of the issuance of Letters of Guardianship, OR if the care plan is being submitted on a calendar year it must be submitted between September 1 and December 1 each year- template provided

COURT PROCESS Guardianship

COURT PROCESS – GUARDIANSHIP • Advance Directives for Health Care and Durable Power of Attorney? • Application for Proposed Guardian • Education, Employment, Criminal and Credit background, Personal References • Indigency application • Petition for Appointment of Guardian • Information about alleged incapacitated person- DOB, relationship, condition, any facts indicating incapacity • Next of Kin information- parents, siblings- served or sign waiver • Any least restricted alternative? POA? • Financial information • Oath of Guardian, Designation and Acceptance of Resident Agent • Agent must be resident of county where case is filed

COURT PROCESS – GUARDIANSHIP • Notice of Petition served on family member and on next of kin (parents and siblings), health care surrogate and agent under durable power of attorney • Three person committee appointed to interview alleged incapacitated person to determine capacity and to write report • Petition to File Simplified Annual Plans, if applicable • Petition to Waive Inventory and Accountings, if applicable • Orders granting petitions- Appointing Guardian • Nature of incapacity • List of rights delegated to guardian • Letters of Guardianship- issued by clerk of court and used when exercising rights on behalf of family members, will likely require certified copies

COURT PROCESS – GUARDIANSHIP • Court appoints attorney who represents family member, meets family member prior to hearing, and can waive family member’s presence at hearing upon good cause shown, though family member has right to be present and testify • Courts sets a hearing on petitions “…as soon as practicable, ” but will allow reasonable delay for the purpose of investigation, discovery, or procuring counsel or witnesses • Prior to hearing, depending on preference of judge, criminal background and credit reports must be filed • Many of these pleadings will be sealed, due to confidential information • Burden of proof is clear and convincing evidence

COURT PROCESS GUARDIANSHIP Guardianship differs in court process from guardian advocacy in a few specific ways: In a guardianship proceeding, a court must determine that a person is “incapacitated” “Incapacitated Person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. A Petition to Determine Incapacity must be filed in addition to other petitions An examining committee is appointed to examine the alleged incapacitated person. The committee is composed of three members. One must be a psychiatrist or other physician. The others are generally part of the health care or social work fields. An adjudicatory hearing is scheduled in which the reports of the examining committee are reviewed and the judge decides whether to enter an order determining such incapacity.

LEAST RESTRICTIVE ALTERNATIVE • Guardian may not be appointed if the court finds that the advance directive or durable power of attorney provides an alternative to the appointment of a guardian which will sufficiently address the needs of the person • Interested person can contest advance directive or durable POA by filing verified statement which includes factual basis that it is invalid or does not address needs of family member • Advance directive: Court shall specify rights of guardian vs. health care surrogate and may modify it • Durable POA: May not be suspended unless court determines invalid or an abuse of power by agent

RESTORATION OF RIGHTS • Any interested person, including the person with the developmental disability, may file suggestion • Currently capable of exercising some or all of the rights that were delegated to the guardian and provide evidentiary support, such as signed statement from a medical, psychological, or psychiatric practitioner, or state good faith basis • Attorney appointed for family member • If guardianship, a physician will be appointed to examine the ward and they must file a report • Clerk sends notices, objections filed within 20 days • Formal notice served on guardian. • Hearing held if objection filed or no evidentiary support • Court enters order denying suggestion or restoring all or some rights

THANK YOU! PLEASE FEEL FREE TO CONTACT US! Michelle Garcia Gilbert, Esquire Gilbert Garcia Group, P. A. 2313 W. Violet St. Tampa, Fl. 33603 Phone: (813) 443 -5087 Fax: (813) 443 -5089 gilbertgrouplaw. com mgilbert@gilbertgrouplaw. com