What is a guardianship?
A guardianship is a legal proceeding where the court gives one person authority (or power) to make decisions for another person who is unable to make decisions.
Are there different types of guardianships?
Yes. Florida law provides for the following types of guardianship:
- Guardianship of adult (person and/or property)
- Guardianship of minor (person and/or property)
- Guardian advocacy of adult with developmental disabilities and/or mental illness (person and/or property)
- Florida law also provides for an order of temporary custody by an extended family member. This order grants the same powers as a guardianship; however, it is filed in a civil court division, not the guardianship court division or the family court division.
What is an incapacitated person?
An incapacitated person is a person who has been judicially determined to lack the capacity necessary to manage at least some of his or her property or who cannot provide for his or her own health and safety. A minor is considered incapacitated because of his or her age.
What are the steps needed to become guardian of an incapacitated adult?
Documents (called pleadings) are filed with the court. An attorney is appointed for the alleged incapacitated person. The court appoints a three-member examining committee to interview and examine the alleged incapacitated person. Each committee member files a report with the court. A hearing is set before the judge. At the hearing, the judge hears evidence regarding the necessity of a guardianship.
If the court finds the person needs a guardian, the court will appoint the person who filed documents with the court. If several people have applied to be guardian, the court will hear evidence about who will be the best guardian. The court will pick from those individuals. If the court finds none of the individuals should be guardian, the court will appoint a professional guardian.
How soon can I be appointed the guardian?
The court may appoint an emergency temporary guardian if one is required. This type of guardian is usually appointed within 48 hours. A guardian of the person and/or property of an incapacitated adult will usually be appointed within 30-45 days. A guardian for a minor can usually be appointed within 7-14 days. A guardian advocate will usually be appointed within 30-45 days. An order of temporary custody by an extended family member can usually be obtained within 14 days. Note: these time periods referred to cases filed in Duval County Florida.
When a guardian is appointed, the incapacitated person is then referred to as the ward. A minor child is also called a ward.
Does the guardian have to file any reports with the court?
Yes. The guardian of the person is required to file an initial guardianship plan and an annual guardianship plan. The guardian of the property is required to file an inventory and an annual financial accounting showing the receipts and disbursements made during the previous year.
Are there any other requirements a guardian must complete?
Yes. A guardian must complete an eight-hour guardianship education class. A certificate of completion must be filed with the clerk of court. Certain counties require a guardian to complete a criminal background check and credit report before being appointed guardian.
When is a guardianship required for a minor?
Florida law requires a guardianship of the property of a minor to be set up if the minor receives assets (inheritance, insurance policy proceeds, settlement from an accident case, etc.) over $15,000. A guardianship of the person and/or property may be set up if one or more of the natural parents are deceased. Certain situations will arise that allow legal guardianship of the child to be established despite the parents’ objections. In most cases, this involves proving the parents are unfit. These cases are usually handled by DCF and occur before a juvenile dependency judge rather than a guardianship judge.
What does a guardian do?
A guardian of the property handles the assets (real property, money, investments, etc.) for the ward, pays the bills of the ward and uses the money for the ward’s welfare and support. A guardian of the person decides where the ward lives and provides medical, mental health and personal care for the ward.
A guardian advocate performs the same duties as a guardian; however, one of the reasons for the appointment of a guardian advocate is to obtain authority to apply for governmental benefits.
The guardian of a minor performs the same duties as guardian, but also has authority to enroll the child in school and consent to medical treatment.
Is a guardian entitled to be paid for his or her services?
Yes, however the fee must be approved by the court.
What is a living will?
A living will is a legal document which lists the specific types of life-sustaining medical treatment you do (or do not) want to use if you have a terminal illness or are in a permanent coma. For example do you want to be hooked up to a machine to keep you alive artificially or do you want to die naturally with only palliative (comfort) care such as pain medication?
Is a living will the same as a last will and testament
No. A Last Will and Testament is a legal document that expresses what you want done with your assets (real property, personal property, money, vehicles, etc.) after your death. A living will sets out what medical treatment you want when you are dying.
Is a living will the same as a DNR (do not resuscitate) or DNI (do not intubate)?
No, they are two separate documents. A DNR or DNI order is a separate document that is signed by your doctor and placed in your medical records. A living will may allow you to be resuscitated while a DNR or DNI may prevent resuscitation
Do I really need a living will?
A living will often avoids family conflict when you have made these major decisions known prior to you to your death. A living will also makes it easier for your loved ones to follow your wishes. For example, have not signed a living will, your family may feel they are “killing” you by refusing to place you on life support. If you have already made your preferences known, it removes much guilt from the family when making these decisions.
Do I have to have a lawyer make a living will?
No. However, you should consult an attorney if you have questions about the living will. Many attorneys have free consultations where you can ask any questions without charge.
Can I use a living will obtained from the Internet or in an office supply store?
Generally, the answer is “no.” Living will forms obtained online and in office supply stores are “general forms” and may not address all possible end-of-life care decisions. For example, some living wills have instructions regarding cardiopulmonary resuscitation (CPR), mechanical ventilation , tube feeding via a tube in the stomach , dialysis , antibiotics or antiviral medications, comfort (palliative) care and organ/tissue donations
Health Care Surrogate
What is a healthcare surrogate?
A living will is a legal document which lists the specific types of life-sustaining medical treatment you do (or do not) want to use if you have a terminal illness or are in a permanent coma (vegetative state). For example, do you want to be hooked up to a machine to keep you alive artificially or do you want to die naturally with only palliative (comfort) care such as pain medication?
Is a healthcare surrogate the same as a medical power of attorney or medical proxy?
Yes. These are different names for the same documents.
Is a healthcare surrogate the same as a living will?
No, they are two separate documents. A living will states decisions about your end of life treatment. A healthcare surrogate makes medical decisions (surgery, medications, etc.) when you are unable to do so.
Do I really need a healthcare surrogate?
A healthcare surrogate will often avoid family conflict when you have made these major decisions known. If different family members have different opinions on your treatment, the doctor may tell your family to obtain a court order giving the doctor directions. A healthcare surrogate avoids this situation by giving one person the authority to make the decisions. The doctor will follow the instructions of the healthcare surrogate, even if other family members disagree. prior to you to your death.
Do I have to have a lawyer make a healthcare surrogate?
No. However it is best to have an attorney prepare your healthcare surrogate because laws differ from state to state. Additionally, you need to be sure the proper HIPAA language is included in your healthcare surrogate. You should also consult an attorney if you have questions about health care surrogates. Many attorneys have free consultations where you can ask any questions without charge.
Can I use a healthcare surrogate obtained from the Internet or in an office supply store?
Generally, the answer is “no.” Healthcare surrogate forms obtained online and in office supply stores are “general forms” and may not address all possible legal issues (for example, HIPAA). A decision appointing a healthcare surrogate is too important to use forms and should include all the legal language required by your state.
Do I choose the same person for my healthcare surrogate and my financial power of attorney?
You can have the same person serve as your financial power of attorney and your healthcare surrogate, or you may have one person serve as your financial power of attorney and another person serve as your healthcare surrogate.
Power of Attorney
What is a power of attorney?
A power of attorney is a legal document where one person delegates (gives) legal authority to another to handle his or her financial affairs.
What do the words in a power of attorney mean? For example, principal, attorney-in- fact, agent, durable power of attorney.
Consider this example:
- Betty executes (or signs or gives) a durable power of attorney to her son, Brian.
- Betty is the principal. She is the person who is giving the power to the other person.
- Brian is the attorney-in-fact. Attorney-in-fact refers to the person who is being appointed to serve as power of attorney.
- Brian is also the agent. Agent is just another word for attorney-in-fact; an attorney-in-fact and an agent are the same thing.
- A durable power of attorney means Brian can continue to use the power of attorney even if the principal (Betty) becomes incompetent (for example, through a stroke, Alzheimer’s disease or dementia). He does not have to get letter from Berry’s doctor stating she is incompetent in order to use the durable power of attorney.
May I use the power of attorney after the person’s death to take care of financial matters?
No. The authority under the power of attorney ends upon the death of the principal. After the death of the principal, the personal representative is the proper person to make decisions.
What is a medical power of attorney?
A medical power of attorney is another name for a healthcare surrogate. This document is also called a medical proxy. A medical power of attorney (or healthcare surrogate) is a document where you appoint someone to make medical decisions for you, if you are unable to make the decisions yourself. An example would be if you have been rendered unconscious in an automobile accident. The person you have appointed as your medical power of attorney (or healthcare surrogate) will make medical decisions for you (surgery, medications, etc.). If your family or relatives disagree about your care, the medical staff will take their instructions from the person you appoint. See the FAQ under the tab “Healthcare Surrogate.”
Does a power of attorney have to be recorded?
Generally, no. However, if you are using the power of attorney to buy or sell property, the power of attorney should be recorded. If you are going to use a power of attorney for financial transactions with a bank or investment firm, the power of attorney should be recorded.
How much does a power of attorney cost?
Attorneys vary widely in what they charge for a power of attorney, so it is wise to call several attorneys before choosing one. Fees can range from $125 to $500. Many attorneys have free consultations where they explain the uses (and abuses) of a power of attorney.
What is a “springing” power of attorney?
A “springing” power of attorney does not go into effect unless and until the principal becomes incapacitated. Springing power of attorneys are no longer valid under Florida law. All powers of attorney are effective immediately upon signing, unless the power of attorney was signed before October 1, 2011. Springing powers of attorney signed before October 1, 2011 are grandfathered in and remain valid, regardless of whether the principal has yet become incapacitated.
What is a “limited power of attorney”?
A “limited power of attorney” gives the agent authority to conduct a specific act, for example, buying or selling a piece of real property or transferring title to a vehicle. The agent’s powers are limited. If the agent has a limited power of attorney to sell a piece of property, the agent cannot write checks on the principal’s bank account or transfer ownership of any other property that belongs to the principal. (Remember to refer to the definitions listed above for definitions of the words principal and agent).
Do I need to sign a power of attorney in front of a notary?
A power of attorney needs to be signed in front of two witnesses and a notary.
Everyone must sign in the presence of each other. The notary may be one of the witnesses.
Can I use a power of attorney form from the internet or an office supply store?
You can always use any form from the internet or an office supply store. The problem is that many of these forms are “general forms” and may not be valid in Florida. It is always best to check with an attorney to make sure your power of attorney is valid. Then you do not have to worry about problems in the future. If your power of attorney is not valid, your case will probably end up in court. This can become very expensive.
Do I lose control of my money if I sign a power of attorney?
No. You can continue to handle your own financial affairs as you did before you signed the power of attorney. However, be aware that the person you appointed as your power of attorney also has power over your money. Therefore, it is very important to choose someone you trust.
Do I need a new power of attorney if I move to another state?
Generally, the answer is no. If your power of attorney was valid where you signed it, it is valid in Florida. However, there may be exceptions, so always consult with an attorney. Many attorneys have free consultations, so call around to find an attorney that is right for you.
Does the State of Florida get my estate if I die without a will?
No. However, Florida law will determine who receives your estate. This may not be how you want your estate to be distributed. Consider these examples:
- Bob and Mary are married. They have two children together. Bob dies. Florida law states Mary receives 100% of Bob’s estate.
- Bob and Mary are married. They have two children together. Bob has two children from a prior marriage/relationship. Bob dies. Florida law states Mary receives only 50% of Bob’s estate.
- Bob and Mary are married. They have two children together. Mary has one child from a prior marriage/relationship. Bob. dies. Florida law states Mary only receives 50% of Bob’s estate.
Do I have to leave my children $1.00 if I don’t want them to receive any of my estate?
No, Florida law allows you to disinherit your children. If you make no mention of your children in your will, they will not receive anything. However, it is usually better if you put a sentence in the will to prove this was your intention; for example, “I hereby leave nothing to my children.”
Should I prepare a revocable living trust to avoid probate?
There is a common misconception that the only way to avoid probate is to have a revocable living trust. This is not true. Trusts are usually very expensive and complicated. By following the few suggestions of Attorney Nichols, you can avoid probate without the expense of preparing a trust. However, each case is different. Some cases will benefit from a trust; however, the majority of families do not need a trust to avoid probate.
When does the “reading of the will occur?
There is no requirement that the will be read to the family. This only occurs in the movies. However, if a person is in possession of the will of a deceased person; he or she is required to file it with the clerk of court within ten days after the individual’s death. If the person fails to file the will, the court can enter an order making them file the will and forcing them to pay any attorney fees that were paid by another individual to have the order entered.
How much does probate cost?
Attorneys vary widely in what they charge to probate an estate, so it is wise to call several attorneys before choosing one. Fees can range from $1,500 to $5,000. Many attorneys have free consultations where they explain the probate process to you. They explain what will happen and what to expect.
How long does probate take?
There are two types of estates – summary administration and formal administration. Summary administration is for estate are valued at less than $75,000 (not counting the homestead) or the person has been dead longer than two years. All other estates require formal administration. Of course, some estates are simple and other estates are complex. This will determine how long the probate process takes. A simple formal administration can be completed in four to six months after the case is filed. A simple summary administration can be completed within fourteen days after the case is filed.
Can I prepare my own will and sign it in front of a notary?
You can prepare your own will and sign it in front of a notary; however, it will not be a valid will under Florida law and the judge will not accept it. Florida has very specific laws regarding how a will must be signed, so it is always best to consult with an attorney. This is also a time to call several attorneys to obtain the price of a will. The price may run from $250 to $1,000. Once again, many attorneys offer a free consultation, so it is worth it to speak with an attorney before preparing any legal document.
What is probate?
Probate is where the court supervises the collecting and the distributing of estate assets. If a person has a will, it is called a testate estate. If a person does not have a will, it is called an intestate estate. Both of these types of estates are supervised by the court.
How do I provide for a disabled son or daughter after I die?
There are several different ways to provide for your disabled son or daughter. The best choice is to consult an attorney to see which way is best for you and your family.
What do I do if I can’t find the original will?
Florida law allows a copy of the will to be admitted to probate. This means the judge recognizes the copy as the last will of the decedent. The court will then proceed to supervise the estate as if the original will had been filed. IF you find yourself in this position, you need to contact an attorney.