Parent or Spouse

One of the options that you have is to petition the court to appoint a legal guardian of the property for your parent or spouse. Before the court appoints a legal guardian, the court must find your parent or spouse to be incapacitated.

One of the options that you have is to petition the court to appoint a legal guardian of the person for your parent or spouse. Before the court appoints a legal guardian, the court must find your parent or spouse to be incapacitated.

One of the options that you have is to petition the court to appoint a legal guardian of the person and property for your parent or spouse. Before the court appoints a legal guardian, the court must find your parent or spouse to be incapacitated.

A guardian is a surrogate decision-maker appointed by the court in a guardianship case to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities.

A guardian of the person is a surrogate decision-maker appointed by the court in a guardianship case to make decisions regarding the Ward’s well-being including but not limited to medical decisions, living arrangements and travel plans.

A guardian of the property is responsible for the Ward’s property, including but not limited to financial assets, real and personal property, and makes decisions regarding the Ward’s property.

A guardian of the person and property makes all decisions on behalf of the Ward, including decisions pertaining to the Ward’s well-being and decisions associated with maintaining the Ward’s real and personal property.

Any adult resident of Florida, related or unrelated to the potential Ward, can serve as a guardian. Certain relatives of the Ward who do not live in Florida also may serve as guardian. However, people who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Individuals who are professional or public guardians can serve as guardian. Additionally, an institution such as a nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the property.

The court may not appoint a guardian in some circumstances in which a conflict of interest may occur.

The first step is for the court to determine whether your parent/spouse is incapacitated. To do that, you will need to file a petition for determination of capacity and obtain a mental health case number.

Once the petition for determination of capacity is filed, three members of the court’s Examining Committee will visit your parent or spouse and evaluate him or her. The Examining Committee consists of eleven psychologists and psychiatrists. The examination of the incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment. After the Examining Committee member evaluates your parent or spouse, he or she will write a report as to their findings and whether he or she considers your parent or spouse to be incapacitated. Judges read the reports from the Examining Committee members to decide whether your parent or spouse is incapacitated.

If the court decides that your parent or spouse is incapacitated, then the court will recommend that a guardian be appointed. The second step in the process is to open a separate guardianship legal proceeding, obtain a guardianship case number and file a Petition to Appoint Guardian. The guardianship legal proceeding has a different case file than the mental health proceeding in which the Ward was found to be incapacitated.

The law requires that all guardians must be represented by an attorney. Fla. Prob. R. 5.030(a).

If you cannot afford an attorney, please contact the Dade County Bar Association Legal Aid at 305-579-5733 or Legal Services of Greater Miami, Inc. at 305-576-0080.

The court appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the Examining Committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that adequately address the person’s incapacity.

You will receive a notice from the court with the date and time of the hearing. You will need to be present at this hearing.

Also, the Examining Committee members will be making arrangements to visit your parent/ spouse to evaluate him or her. If possible, please assist the Examining Committee members with securing a date, time and place to evaluate your parent or spouse.

You will need to open a separate legal guardianship case and file a Petition to Appoint Guardian. The guardianship case number will be separate from the mental health case number.

If your parent or spouse is not found to be incapacitated, then the court cannot appoint a guardian.

Once the judge makes a determination as to capacity, the mental health case is closed.

You will need to open a separate legal guardianship case and file a Petition to Appoint Guardian. The guardianship case number will be separate from the mental health case number. Please see the Guardianship page as to the steps you need to take to become the guardian.

Once the judge makes a determination as to capacity, the mental health case is closed.

If your parent or spouse is not found to be incapacitated, then the court cannot appoint a guardian.