Are there any less restrictive alternatives to a guardianship?
There are other ways to assist your vulnerable adult, including pre-need guardianships, advanced health directives, living will, power of attorney and supported-decision making documents. As estate planning professionals, we can create a comprehensive plan that will not only protect your future but will come into play in the event of an incapacity.
Supported-Decision Making
A Supported-Decision Making Plan is an agreement between a competent but vulnerable adult and an individual to serve as a trusted supporter, who will assist the person with a disability in understanding information and making life decisions. The greatest benefit to this option is that it does not go through the court system and, therefore, does not legally remove any rights. This plan is much less restrictive and allows the vulnerable adult to maintain full decision making power and control, with the supervision and assistance of a trusted individual.
The supporters can help you make informed decisions in the following ways:
Collecting and communicating information that is related to a decision;
Helping the individual understand and explore options;
Explaining the risks and benefits of options;
Giving guidance and recommendations; and
Assisting in communicating and carrying out the decision.
Power of Attorney
A Power of Attorney is a legal document that gives the designated person the legal authority to make decisions of specific matters for the person who created it. These powers can be general (durable) or limited. A Power of Attorney can be exercised until the death of the person who gave it, even if the person becomes incapacitated. With all Power of Attorney options, the person with a disability must have the mental capacity to understand the documents that they are signing.
Healthcare Surrogate
A Healthcare Surrogate is a written document that informs healthcare practitioners and others how the person with a disability wants their healthcare rights handled, and who they want to exercise their medical rights when they are unable to make those decisions. As with the other documents on this list, it must be executed by a competent adult.
Guardianship Attorneys in Miami, Florida
Caring for a disabled or elderly family member is a challenging responsibility that demands emotional, physical, and financial investments. The complexities of managing daily care routines, medical appointments, and navigating a myriad of healthcare decisions can already be overwhelming. Amid such demanding responsibilities, the intricacies of the legal process should be a secondary concern.
Entrusting legal matters to professionals allows caregivers to focus on the immediate needs and the emotional support required by their family members, relieving them of the additional stress that legal complexities can bring. To simplify matters, we have organized our most frequently asked questions to help you get started.
When should you begin the guardianship process?
What exactly IS a guardianship?
A guardian is an individual (often a close relative or friend) appointed by the court to act on behalf of an incapacitated person — called a “ward” — or for the ward’s assets. The guardian will have the power to exercise legal rights on behalf of the ward, as detailed in the guardianship plan.
The first legal step in the process is to petition the court to determine the ward as incapacitated. This is aptly called the "Petition to Determine Incapacity". There, the court can find that the ward lacks the capacity to manage some or all of their property, health, or affairs, and require the appointment of a guardian to act in their best interest.
Initiating guardianship proceedings promptly is crucial, particularly when minors are nearing the age of 18. Once a child reaches this age, it is assumed that they possess the capacity to manage their financial matters, medical care, and general affairs. Regrettably, parents with vulnerable minor children often encounter a dilemma at this juncture. After the child turns 18, parents may find themselves unable to communicate with their child's medical providers or guarantee that the child receives necessary care. This situation becomes especially challenging when the child is undergoing regular therapy sessions, such as those provided by a behavioral or speech therapist. That is why we recommend reaching out to an attorney at least three months prior to your child turning 18 to commence preparing the proper docmuents.
The court will appoint an attorney to represent the alleged incapacitated person, and will appoint a three-member panel to assess the ward's alleged incapacity, typically consisting of a psychiatrist, psychologist, and a physician. The committee will conduct a series of examinations (typically mental, physical, and a functional assessment) and report its findings to the court.
If the examining committee finds the person is unable to exercise certain rights, the court schedules a hearing to determine whether the person is totally (plenary) or partially (limited) incapacitated. Depending on the court’s determination, the court may appoint a guardian of the person only, a guardian of property only, or a guardian of the person and property. The guardian will be required to do fingerprinting and complete an 8-hour guardianship course before their appointment.
Contact us for your free consultation.
Address
310 Alhambra Cir,
Coral Gables, FL 33134
Contacts
(305) 916-3036
david@quintanalaw.us