GUARDIANSHIP – WHEN CAN A PERSON BE DECLARED LEGALLY INCOMPETENT?

If a loved one is experiencing memory loss or suddenly making poor decisions, you and your family members may be contemplating whether seeking a Guardian for them is the right thing to do.

In Florida, the only way to get a Guardian appointed is to formally file a Petition seeking a Court to declare that your loved one is legally incompetent.  This is usually referred to as Guardianship proceedings. In some states, a Guardian might be to as a Conservator. The person who is declared legally incompetent is referred to as the “ward.”

Determining whether someone is incompetent to make their own decisions is a complicated process and requires the assistance of several individuals.

A guardian will only be appointed as a last resort, when less restrictive alternatives, such as a power of attorney, are not in place or would not work. 

The standard under which a person is deemed to require a guardian differs from state to state. In some states, the standards are different depending on whether a complete guardianship (Plenary Guardian) or limited guardianship is being sought.

FACTORS USED BY COURTS IN GUARDIANSHIP PROCEEDINGS

Generally, a person is judged to be in need of guardianship, when he or she shows a lack of capacity to make responsible decisions or decisions that are in their best interests. 

The court usually looks at a number of factors in determining the need for a guardian or conservator, including the following factors: 

• Comprehension of important medical or financial information;

• Appreciation of the importance of medical and financial decisions and understanding of the effect of those decisions; 

• Ability to make reasonable decisions using the information available;

• Capacity to communicate decisions in a consistent manner; and

• Ability to maintain a safe environment.

FACTORS THAT DO NOT QUALIFY FOR GUARDIANSHIP

A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Spending your expected inheritance does not qualify as a basis for the appointment of a guardian. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Keep in mind that the standard for whether someone is legally incompetent to care for themselves is not always the same as whether they have the capacity to make legal decisions. Proper execution of a specific legal instrument requires that the person signing has sufficient mental “capacity” to understand the implications of that document. 

DON’T GO IT ALONE!

Whatever, you do – if you think your loved one needs a Guardian, it is important that you contact a qualified Elder Law Attorney and get legal help to navigate the process.

If you need help with a Guardianship matter or any other Elder Law issues please contact the Conticello Law Firm today.   

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• Florida Elder Law
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CLICK BELOW FOR EXTERNAL LINKS:

• Chapter 744, Florida Statutes – Guardianship
• Florida Guardianship Legal Forms – By Florida Courts