September 2021
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Florida Guardianship Law - All the Basics
One of the things we all are concerned about is the possibility that we may become incapacitated. That is, that we may suffer an injury or illness such that we cannot make critical decisions about our property, our assets, our medical treatment, our financial holdings, and overall, our lives.When it comes to matters before the probate court, in which a Florida court is concerned with the distribution of assets, there are rules in place regarding incapacitated persons. This newsletter will give you a little overview of the basics of guardianship in Florida. 
What is a Guardianship?
A guardianship is a legal relationship between an incapacitated person and a person who is appointed by the probate court to act as a guardian for that incapacitated person. In essence, the guardian makes decisions for someone who cannot make decisions for himself or herself. The State of Florida gives probate judges the authority to appoint a guardian to make decisions for an incapacitated person regarding such matters as:

  1. Giving consent to certain medical treatments;
  2. Arranging for basic necessities like the purchase of food, clothes, cars, and household items;
  3. Education choices;
  4. The sale or purchase of property, or other assets; and
  5. Managing financial accounts.

A person can be considered "incapacitated" due to health problems. A minor is also considered “incapacitated” in the eyes of the law. A person who suffers from an addiction to drugs or alcohol can, in certain circumstances, be deemed “incapacitated” with regard to important decisions as well.
How is a Guardian Appointed?
The court must be very careful in selecting an appropriate person who will objectively act in the incapacitated person’s best interests. Accordingly, courts will prefer people to act as guardians who already have ties to the incapacitated person. Those people could include:

  1. A person already designated by the incapacitated person before he or she became incapacitated. This circumstance is the easiest for the Florida probate court, because it is simply a matter of carrying out the desire of the incapacitated person who thought ahead.
  2. A spouse.
  3. A parent or other relative.
  4. A state employee or private person familiar with the incapacitated person, and/or the incapacity at issue.
What Are the Ways in Which to Establish My Own Guardian?
Given all the information above, you likely want to know what you can do to pre-select a guardian, in the event you become incapacitated. That instinct is not at all surprising. It makes sense to plan ahead so that you know you can trust the person who may have to handle your most sensitive affairs. First and foremost, you want to talk to an experienced probate and estate planning attorney before trying to choose a person as your potential guardian. 

  1. Create a durable power of attorney,
  2. Designate a health care surrogate
  3. Draft a living will;
  4. Start a revocable living trust and transfer your assets into that trust. That type of asset vehicle will allow you to designate a person who can manage your medical care and your assets if you become incapable of doing so.
In The News
The Britney Spears Conservatorship
In a constantly evolving courtroom and personal, family drama, 39-year-old Britney Spears is in the midst of a battle over control of her $60+ million-dollar fortune. The pop star is enmeshed within a conservatorship legally awarded to her father and other guardians by the California court system. Estate planning attorney Rebecca Doane weighs in on the subject in this short video.
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