Santa Barbara
62° F
Scattered Clouds
Scattered Clouds
Santa Maria
53° F
Scattered Clouds
Scattered Clouds
San Luis Obispo
54° F
54° F

Guardianships: 3 things you need to know

By By attorney Collett Small, Special to THELAW.TV
Published On: Nov 14 2013 02:45:17 PM CST
Updated On: Nov 14 2013 03:06:05 PM CST
Hospital patient in bed


Guardianships are created by the courts to make decisions for people who can't make their own decisions. THELAW.TV asked Pembroke Pines, Fla., estate planning attorney Collett Small to explain the basics of guardianship law. The article below is based on Florida law, but the laws on guardianship differ from state-to-state. Always contact an attorney licensed to practice law in your state if you need to create a guardianship.

What is the difference between a guardianship and a power of attorney?

A guardianship is a legal proceeding in which a guardian is appointed by the court in order to exercise the legal rights of someone who has been found to be incapacitated. The incapacitated person is known as a ward. The guardian is ordered by the court to work to maintain the ward and/or his or her property. The appointment of a guardian may mean that the ward will be deprived of some of his or her rights. On the other hand, a power of attorney is a document that is executed by a competent person and does not require court proceedings. A power of attorney must be executed by someone with the legal capacity to do so and gives someone else, attorney-in-fact, the right to make certain decisions on behalf of the person who is signing, the principal. The principal does not relinquish any rights over to the attorney-in-fact, but rather just authorizes him or her to make decisions on the principal's behalf.

What is the procedure for appointing a guardian?

First, a petition is filed by a competent adult seeking to have someone declared incompetent. Once the petition is filed, the court will appoint an examining committee and an attorney for the allegedly incapacitated person. The examining committee will be made up of three persons, one of which must be a physician or psychiatrist, who will conduct individual examinations of the allegedly incapacitated person and report their findings to the court.

Second, there will be a hearing in which the court will review the findings of the examining committee in order to determine whether the allegedly incapacitated person is in fact incapacitated. Before deciding to appoint a guardian, the court will first determine whether there are other less restrictive ways to provide assistance to the incapacitated person without removing his or her rights.

Finally, if the court determines that there is no less restrictive manner to help the incapacitated person, a guardian will be appointed. The court will appoint the guardian and issue Letters of Guardianship stating which rights are to be removed from the ward and become the responsibility of the guardian.

What are the duties and responsibilities of a guardian?

A guardian may be required to submit to financial and criminal background investigation if the court determines it to be necessary. Florida law requires a guardian to complete a training course within four months of being appointed as guardian. A guardian is required to retain an attorney licensed to practice law in Florida.

The court also requires certain reports to be filed at the initiation of the guardianship as well as annual reports. Within 60 days after the Letters of Guardianship are issued, a guardian of the person must file an Initial Plan for the ward that will be based on the recommendations of the examining committee. It must include information regarding plans for the ward's mental and medical services, personal care, and residential determinations. A guardian of the person is also required to file an Annual Plan outlining the ward's current location and condition and any plans for changes in the upcoming year. The guardian must also provide a report from the ward's physician as an updates on the health and capacity of the ward. A guardian of the property must submit an Initial Inventory within 60 days of the issuance of the Letters of Guardianship. The Initial Inventory must include a list of all of the ward's assets and property as well as their location and any income that the ward is to receive such as interest on accounts or social security benefits. A guardian of the property must also file an Annual Accounting to show any disbursements of the assets or property of the ward as well as the year-end statement for any bank accounts.

The author, Collett Small, is a Pembroke Pines, Fla., estate planning attorney.


The views expressed are not those of this company or its affiliated companies. Please note by clicking on "Post" you acknowledge that you have read the Terms Of Service and the comment you are posting is in compliance with such terms. 
blog comments powered by Disqus
  • Triple Fatal Auto Accident on Highway

    3 Dead In Early Morning Accident, Driver Arrested For DUI

    The 101 southbound through Santa Barbara reopened just before 12:30 Monday afternoon as authorities investigate what they say was a deadly two car DUI accident.

  • Witnesses to Fatal Crash

    Eyewitnesses See Triple Fatal Crash from Roadside Camp

    A homeless couple watching the freeway from their campsite in Santa Barbara this morning, witnessed the triple fatal accident that took the lives of two teens and a young man.

  • Triple Fatal Auto Accident on Highway

    DUI Driver in Fatal Early Morning Accident Ordered to Detox Program in 1995

    The Santa Barbara woman arrested for DUI in the early morning accident that left three people dead early Monday morning has a lengthy court record out of Ventura County. Kimberly Kreis, 52, was ordered to serve 30 days in a detox program as far back as 1995.

    The car that Kreis was driving crashed into a disabled Mazda near the Castillo off-ramp of the southbound 101 freeway in Santa Barbara. Two 17 year old North Torrance High School students were killed in the accident- Jessica Leffew and Danielle Murillo. 20 year old Brian Lopez also died in the wreck. The driver of the Mazda, Eric August, is hospitalized in critical condition.

    A NewsChannel 3 investigation found records out of Ventrua County that appear to show that Greis has at least one prior conviction involving drugs and or alcohol, and in 1995 she was ordered to serve 30 days in a Cottage Hospital detox program.

    CHP investigators are still trying to piece together why the Mazda veered right into a guardrail, causing it to flip onto it's roof before coming to rest in the middle of the southbound freeway, which set into motion the deadly accident.

    CHP Officer Jonathan Guiterrez, said "A lot of things could have happened, He could have fallen asleep. We just don't know at this point."

  • Santa Barbara Fatal Accident Folo

    Extensive Investigation into Triple Fatal Accident

    An extensive investigation is underway to determine the cause of death in a triple fatal rollover accident Monday morning in Santa Barbara.

  • girl_child_coughing_sick_whooping_cough

    Contagious Diseases Making a Comeback in California

    Deadly diseases that were a thing of the past are making a comeback in California.

  • fuzion_store_business_santa_barbara

    UCSB Group Boycotts Business For Promoting Deltopia

    A UCSB student group is boycotting a local business for creating the Deltopia Facebook page, which they said brought in thousands of outsiders to the small college town.

  • Parents of Mallory Dies Sue Congresswoman, Her Former Aide, and U.S. Government

    The parents of a young Santa Barbara woman killed in a high profile, DUI case are suing Congresswoman Lois Capps, her former aide Raymond Morua, and the U-S government in federal court.

  • Larry Lee Cal Poly Coach

    Cal Poly Baseball Earns No. 1 National Ranking

    The Mustangs achieved the school's second No. 1 national ranking in Division I as Collegiate Baseball Newspaper has placed Cal Poly atop its Top 30.

  • Slideshow: 3 Dead In Early Morning Accident, Driver Arrested For DUI

    The 101 southbound through Santa Barbara reopened just before 12:30 Monday afternoon as authorities investigate what they say was a deadly two car DUI accident.

  • Who's the Boss blurb image

    Sony Pictures Television

    Where are 'Who's the Boss?' stars now?

    With Tony Danza marking his 63rd birthday on Monday, join us for a look at what he and the rest of the cast of "Who's the Boss?" are up to today.