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Why Picking The Right Guardian Is So Important


When a spouse or loved one starts to exhibit signs of mental or physical decline, recognizing and responding to their new and changing needs is frequently a challenge. Once a person becomes a legal adult, he/she is able to make a number of legally significant decisions, which creates complications when a person’s health is in question. Becoming mentally or physically incapacitated does not automatically remove a person’s legal ability to make decisions about his/her life and finances. Only a court can remove these rights through the process of guardianship. Guardians are court-appointed individuals that are meant to protect the personal and/or property rights of a person found to be incapacitated by a judge. Though rare, guardianship can even enter the divorce process. A recent example of this situation is found in the contentious divorce between the current and former Broward County Clerk of Courts, and centers around claims of the husband’s incapacity, which a court ultimately rejected at the end of last year. Guardianship is extremely difficult to reverse once established, so ensuring this is the right choice for a struggling family member is essential. A discussion of how a court assesses whether a person is incapacitated, and potential challenges to the process used to contest the findings or person seeking appointment, follows below.

Determining Incapacity

Having someone declared legally incapacitated is no small thing, and while a treating physician’s opinion can be relevant and persuasive on the person’s ability to function, the court will ultimately decide the issue. Florida law has a process for making this determination if guardianship is involuntary and contested, based on a combination of statements from family, friends and colleagues on a person’s capacity, and more importantly, the conclusion of a panel of medical professionals. Three medical professionals are tasked with assessing the individual’s ability to competently perform the rights of a legal adult, which is accomplished through:

  • a physical exam;
  • a mental health exam; and
  • a functional assessment.

Each professional must then submit a report to the court explaining his/her assessment of the individual’s ability to retain certain rights and his/her diagnosis, prognosis and recommended course of treatment, if possible. Voluntary guardianship is a much easier process, and the person who will serve as guardian is usually designated in advance.

Challenging the Guardianship Process

As explained above, guardianship is a big step that should be approached after careful consideration among family members and consultation with family doctors. Conflict over this process can arise if family members disagree about a person’s incapacity, or who should serve as the guardian. Spouses and children are most often chosen to assume the guardian role, though most adults and some entities are also eligible. Once appointed, the guardian is not typically required to confer with other family members before making important decisions. Thus, selecting the right person as guardian is important to the incapacitated person’s long-term wellbeing. It is possible to challenge the qualifications of a proposed guardian. Florida law prohibits the appointment of anyone with a felony conviction, and also permits a court to reject a potential guardian if he/she lacks the ability to carry out the necessary duties. Additionally, the claim of incapacity itself may also be challenged. Testimony from a doctor certified in the proposed incapacity that supports the individual’s ability to manage his/her own affairs, as well as testimony from family and friends about the person’s functionality, could convince a judge to reject the petition for a declaration of legal incapacity. Guardianship cases are complicated matters, and need the attention of an experienced guardianship attorney to ensure the appropriate steps are taken to protect an impaired individual.

Get Legal Advice

Serving as a guardian is a big responsibility that is governed by a number of regulations. The attorneys at the office of Joyce A. Julian, P.A. have decades of experience helping guardians in the Fort Lauderdale area navigate and stay in compliance with these regulations to avoid allegations of mismanagement and to secure the welfare of the ward. Contact us to schedule a free consultation today.



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