- The Ward is the subject of the Guardianship
- The Guardian is the surrogate decision maker appointment by the court.
A Guardianship is only warranted when less restrictive options have not been effective. Properly designed Advanced Directives can avoid the guardianship process in many circumstances.
Many times advanced directives can avoid guardianship such as:
- A Durable Power of Attorney
- A Living Trust
- Health Surrogate or Proxy
Sometimes advanced directives cannot avoid guardianship.
Even though Guardianship is not a pleasant process, sometimes it is the only option to protect the vulnerable individual. For example if a vulnerable elderly person had developed Alzheimer’s or another form of dementia, they most likely would not realize how vulnerable they were and would not be competent enough to create a the necessary Advanced Directives or might revoke them when they are not competent enough to make that decision.
When a person is incapable of performing all tasks of caring for themselves for property, the court will grant to the
guardian the authority to exercise all delegable legal rights and powers of the ward.
In some situations the incapacitated person lacks some
but not all of the capacity necessary to care for his or her person, property. The court will appoint a guardian to exercise only those legal rights and powers necessary to protect the Ward. The limited guardianship is designed to encourage the most self-reliance and independence possible, and to be the least restrictive alternative to a complete or plenary guardianship.
Under Florida law, a person who is mentally competent but who, by reason of age or physical infirmity, needs assistance in managing some or all of his or her property, may petition the court to establish a voluntary guardianship of the property. The petition must be accompanied by a certificate from a physician that he or she has examined the person and the person is competent to understand the nature of the guardianship and the delegation of authority to another.
When a person has become incapacitated and unable to take proper care of himself or his property and has not prepared with advanced directives, a formal guardianship process may unfortunately be necessary.
What is Incapacity?
An incapacitated person means a person who has been
determined by the court to lack capacity to manage some if not all of his personal and/or financial affairs.
What is the Role of a Guardian?
A guardian for an adult is appointed by the court as a surrogate decision maker for someone with physical and/or mental disabilities.
1. A guardian may be appointed to make decisions about personal matters and/or financial matters.
2. These decisions might include necessary medical care, the residence of the Ward, management of property, and
3. All decision that an individual would usually make for themselves.