If your parents are getting older and are unable to make decisions for themselves, have no estate planning documents prepared, and are unable to remember his or her own birthday, then a guardianship may be necessary. There are different types of guardianship for an adult and guardianship for a minor.
Estate planning documents cannot be prepared unless a person has the right mental capacity to appoint someone the ability to take care of them. A person may be not in the right capacity due to dementia, paralysis, autism, or many other mental or physical conditions.
A minor, a person under the age of 18 years old, may have inherited more than fifteen thousand ($15,000) dollars making a guardianship necessary. Minors can not inherit more than $15,000 without having a guardianship. A minor may have autism or cerebral palsy, or another neurological disorder making a guardianship necessary for a child.
A person has to declare that an individual has incapacity and can no longer make decisions for him or herself.
There are two hearings that need to occur to obtain guardianship over an individual. The first hearing is an incapacity hearing and the second hearing is the Appointment of Guardian.
The individual has to be seen by a three person panel comprised of psychiatrists, mental health specialists, and therapists stating that the individual has the inability to care for him or herself and is incapacitated.
There are ten decision-making criteria that the three person panel has to evaluate the person on:
- to contract
- to travel
- to sue and defend lawsuits
- to have a driver’s license
- to determine his or her residency)
- to seek or retain employment
- to consent to medical and mental health treatment
- to manage property or to make
- to personally apply for government benefits any gift or disposition of property
- to make decisions about his or her social environment or other social aspects of his or her life
If the Incapacitated person (Ward) is able to make some of the decisions, then it is considered a limited guardianship rather than a full plenary guardianship, which is when all of the rights are taken away from a person. Guardianship is very restrictive because each time a person wants to exercise a right. The guardian needs to petition the court and be represented by an attorney, which makes guardianship very costly. If the person is in the right mental state, then a durable power of attorney should be obtained instead.
If an individual is able to exercise a couple of rights above and has autism or one of the delineated mental states according to Florida Statute, then a guardianship advocate can be formed because a parent could act as the agent for a child who has autism who can not take care of himself or herself completely. A guardian advocate is similar to an agent in a durable power of attorney.
Guardian Advocate §393.063(12)
If someone has autism, cerebral palsy, mental retardation, spina bifida or Prader-Willi, Down, or Phelan-McDermid syndrome that manifested before the age of 18 and constitutes a substantial handicap that can be expected to continue for the rest of the person’s life then he or she can apply to have a guardian advocate. However, it is very important that the individual still has to be able to make some of the decisions.
The different types of guardianship are: plenary, limited, and a guardian advocate.
Guardian Requirements and Appointment
The second portion is to appoint a guardian. The guardian can not have convicted a felony. The guardian has to be a family member or close friend that would have the ability to make the decisions for the Ward. The guardian needs to take a class to learn how to become a guardian. With a guardianship and guardian advocate, an Initial Report must be filed within 60 days and there is an annual reporting requirement with both the guardianship and guardian advocate.
Someone who has not committed a felony.