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New Bill Would Allow a Guardian to Initiate a Divorce


There may come a time in everyone’s life when they are no longer capable of handling their own personal and financial affairs. In this situation, the appointment of a guardian may be necessary to safeguard themselves and/or their property. The extent of a guardian’s authority can vary based on the needs of the impaired individual, and can encompass just financial decisions, just personal care decisions or both. In any case, the guardian holds a lot of authority and assumes many of the rights adults normally exercise on their own. Thus, to protect the interests of the person needing assistance, a guardian can only be appointed if the incapacitated individual is first declared legally incompetent by a judge. Ideally, the court is able to appoint a family member to take on this responsibility, but if the family cannot agree on someone, or no one is willing/able to assume this obligation, a public guardian will be appointed instead. The use of public guardians has led to heated criticism of the guardianship system in Florida in recent years, as a result of allegations of financial exploitation of the elderly. Legal reforms were passed to protect these vulnerable individuals in 2016, and 2017 is seeing more reform as another bill was recently sent to the governor’s desk for a signature. Guardianship is an important issue in Florida due to the large number of retirees and should be watched closely by those affected. To that end, an overview of the new proposed revisions to Florida’s guardianship law will be discussed below.

Declaration of Incompetency

An essential part of the process to declare a person incompetent involves an examination by a three-person medical committee to assess the person’s physical abilities, cognitive functioning and overall capacity for self-management of his/her affairs. Each member must then submit a report to the court outlining the person’s ability to exercise certain rights, such as the right to hold a driver’s license, decide where to live, file a lawsuit, and dispose of property. The proposed law would make it easier to introduce the committee members’ reports as evidence at the incapacity hearing, but also to establish a procedure that allows the person alleged to be incapacitated to challenge all or part of a report. Related to these changes, the new law would also require a copy of all reports be provided to the attorney for the person being evaluated for incapacity sooner – 10 days before the hearing versus the current five day requirement – so there is sufficient time to review the contents and decide if a challenge is warranted.

Exercise of the Guardian’s Authority

As noted above, guardians are generally granted substantial authority in order to properly manage the life of an incapacitated person, but there are still some actions a guardian cannot take without prior court approval. These include:

  • committing a person to an institution without a formal hearing;
  • consenting to the person’s participation in medical studies or experimental treatment, minus certain exceptions;
  • consenting to the termination of the person’s parental rights;
  • initiating a divorce; or
  • consenting to sterilize the person or to perform an abortion of the person’s fetus.

On the issue of divorce, the current law additionally requires the incapacitated person’s spouse to consent to the dissolution before a court may approve the petition. The new law would remove the need for this consent to address situations where an abusive spouse would be able to block the divorce for his/her own benefit.

The practical effects of the new law, set to come into effect on July 1, would take some time to understand, but these revisions seem to signal lawmakers acknowledge the system has issues that need attention.

Contact a Guardianship Attorney

Managing your own life is a right that most take for granted, but if you or a loved one is concerned about how to handle the transfer of authority to a guardian, talk to a Florida guardianship attorney. The financial ramifications of a guardianship proceeding are very serious, and it is important to ensure the right person is appointed. Fort Lauderdale attorney Joyce A. Julian, P.A. can help you and your family navigate this complicated process, and oversee the guardian’s performance of his/her duties. Contact the office today for a free consultation.



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