Guardianship Attorneys in Sarasota

How Does a Guardian Get Appointed?

The first step in having a guardian appointed for a vulnerable person is the determination of whether and in what respects they are incapacitated. The proponent of the guardianship begins the process by filing a petition with the court requesting that an individual’s capacity be determined by the court.

Determining Incapacity

The petition must set forth the basis for suspecting that the person's capacity is questionable.

For example, the person is:

• Not paying their bills
• Neglecting a serious medical need
• Or is unable to protect themselves from scam artists

An interesting aspect of the filing of a petition to determine incapacity is that unless the court rules otherwise, the mere filing of the petition suspends all powers of attorney (although healthcare powers remain intact unless taken away).

When the petition to determine incapacity is filed, the court does two things: First, in order to safeguard the vulnerable person's right to due process, he or she may be entitled to notice of and ability to attend all legal proceedings related to the guardianship. In addition, the vulnerable person must obtain representation by a guardianship attorney in Sarasota.

The Examining Committee

The court will generally appoint an attorney to represent the individual. The person can substitute their own lawyer if they choose to. Secondly, the court will appoint a committee of three persons who must go visit the person alleged to be incapacitated, interview them, and report back to the court.

The committee consists of a psychiatrist or physician, and the others are generally:

• Therapists
• Gerontologists
• Nurses
• Or social workers

The examining committee is required to identify from a pre-established set of criteria what functions the person is unable to perform.

Among these are handling finances and making informed decisions about their:

• Healthcare
• Residence
• Social contacts
• And more

The Committee Decision

Then, the committee reports on what legal rights the individual is unable to perform such as the right to decide where to live, how to spend money, to gift money, or to enter into a contract. If the court finds that the person indeed lacks the capacity to exercise the rights identified by the committee, the court literally removes the rights of the person.

This loss of rights is often permanent, although they can later be restored upon a finding that the person has regained the lost abilities and the court restores legal capacity.

Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:

• Choosing residence
• Providing informed consent to medical treatment
• Making end-of-life decisions
• Making property transactions
• Obtaining a driver’s license
• Owning, possessing, or carrying a firearm
• Filing or defending lawsuits
• Marrying
• Voting

Guardian Rights & Limitations

Once the court takes a person's rights away, it will then transfer those rights to a guardian. For example, looking at the preceding list, most of those rights would be transferred to the guardian. However, certain personal rights, such as marriage, voting, or driving, are not delegable to the guardian.

How Is a Guardian Chosen?

The court will appoint a qualified individual to act as guardian. Often, this is a family member or friend. However, if there is more than one person vying for appointment, especially in a family conflict situation, the court may appoint an independent, professional fiduciary.