Guardianship for an Incapacitated Loved One
Often times, family members can become embroiled in an emotional tug-o-war with each other regarding the care of a loved one who becomes incapacitated. This is usually the case when the common mistake of failing to prepare for a potential disability is made–because let’s face it, who wants to confront his/her mortality? Unfortunately, we never know what can happen between today and tomorrow..
What is guardianship and how is it established?
In the event that no preparations have been made prior to a loved one’s incapacity—or even when a conflict arises in spite of advanced planning, guardianship serves as a net.
Guardianship is a court-supervised process designed to protect the needs, interests, and rights of a person who can no longer make his/her own financial and/or health care decisions. The court will appoint a qualified person as guardian only after a determination of incapacity has been previously made in a separate hearing. Incapacity must be established by clear and convincing evidence. This requires the alleged incapacitated person to undergo a three-part examination in which a committee of three professionals evaluates the person’s mental, physical, and functional health.
The ultimate goal of a guardianship proceeding is to appoint the least restrictive form of guardianship so as to adequately address the person’s incapacity while affording him/her as much legal autonomy as possible. Under Florida law, different types of guardianships—or even no guardianship at all—may be required depending on the particular needs of the incapacitated and/or the existence of certain advanced directives. The guardian will be legally responsible for carrying out those duties imposed by the court.
The initial decisions of determining who should be guardian and how a loved one should be cared for can become an emotionally-charged battle between family members who each believe that he/she knows what is best. Other times, conflict can erupt over the inability of an appointed guardian to act prudently. Regardless of the issue, guardianship cannot be taken lightly. With the right representation, however, family members can be assured that the best interest of their incapacitated loved one is priority.
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