What is a guardianship?

A guardianship is established through the circuit court when someone is incapacitated and is in need of someone to manage their health, safety, welfare, and possibly finances. A guardianship is needed if there is no durable power of attorney or the authority granted is not sufficient to meet the needs of the incapacitated person.

How do I begin the process?

If you believe that your loved one may be in need of a guardian, you will need to consult an attorney because a guardian must have legal representation in the guardianship process.

What are the steps in a guardianship matter?

Determine Incapacity

After a petition to establish incapacity and a petition to appoint a guardian is filed, a Judge will appoint an examining committee to meet with the person that may be incapacitated and provide a report on their findings. Also, an attorney will be appointed for the person that may be incapacitated in order to act in his or her best interest. During a hearing, the Judge will review the reports from all parties and determine whether the person is in fact incapacitated. If the person is deemed incapacitated they are referred to as a Ward.

Appoint Guardian

A guardian is appointed and the Ward will lose certain rights identified during the hearing. The guardian will have authority to act based on a document called Letters of Guardianship.

Requirements for Guardians

The number one responsibility of a guardian is to ensure the health, safety, and welfare, of the Ward. In addition, the guardian must responsibly manage property (house, car, bank accounts, etc.) on behalf of the Ward.

• Complete guardianship course
• Conduct inventory of property owned by Ward
• Create guardianship plan for the health, safety, and welfare of the Ward
• Open a restricted depository with a bank or trust company, if necessary
• Complete and file annual accounting and guardianship plan with the Circuit Court each year the guardianship is open

What is probate?

Probate is the process performed using the Circuit Court to open an estate for someone that has passed away. Probate is necessary when property or assets need to be legally transferred to beneficiaries.

What is the difference between Formal and Summary Administration?

Formal Administration is the probate process for estates with more than $75,000 and tends to be a longer process. Summary Administration is the probate process for estates with less than $75,000, no creditor claims, and cases where the person who has passed away has been deceased for at least 2 years. Summary Administration is a shortened probate process.

How are the beneficiaries determined?

Generally speaking, if a Will exists, the Will determines the beneficiaries. If a Will does not exist, the Florid Statute determines who the beneficiaries are and how the assets are distributed. See Florida Statutes Chapter 732.

What is the role of a Personal Representative in a Formal Administration?

In Florida, a Personal Representative is used instead of Executor. The Personal Representative is appointed by the Circuit Court. The Personal Representative has a duty, with the guidance of an attorney, to complete the following tasks:

• Identify, gather, value and safeguard probate assets
• Publish a Notice to Creditors in a local newspaper
• Identify known creditors and provide Notice to Creditors
• Serve a Notice of Administration to surviving spouse and beneficiaries
• Object to improper claims, and defend suits brought on such claims
• Pay valid claims
• File tax returns and pay any taxes, if necessary
• Hire professionals to assist in the administration of the probate estate
• Pay expenses of administering the probate estate
• Distribute probate assets to beneficiaries
• Close the probate estate

What is an estate plan?

An estate plan includes legal documents that create a road map or plan for loved ones to follow when someone passes away or becomes incapacitated.

How do I begin the process?

I recommend that you begin by creating a list of all your property. Next, identify your beneficiaries and whether they have special needs. In addition, speak to an insurance agent or financial services professional regarding financial planning, life insurance needs, investments, and long-term care options. Finally, consult an attorney that will help you leave a legacy for your family.

What is included in an estate plan?

Each person is unique and may have a range of considerations when determining his or her estate plan. However, a basic plan may include the following legal documents.

• Last Will and Testament or Will is a legal document.  The Will identifies property and the beneficiaries that will receive property when a loved one passes away. Also, a personal representative is designated and responsible for distributing property, opening probate (if necessary), and handling final affairs.
• Durable Power of Attorney is a legal document . The Durable Power of Attorney grants power to an agent to act on the behalf of another person. The agent may handle personal, financial, or health related decisions. The Durable Power of Attorney is effective when the document is signed.
• Health Care Surrogate is a legal document. The Health Care Surrogate grants authority to a person who is given authority to make health care decisions on behalf of someone who is unable to make their own health care decisions.
• Living Will is a legal document.  The Living Will reflects wishes to pass away, fight for life using life support, or take other extraordinary measures when it is the only option to sustain life.
• Trust is a legal document. the Trust allows a trustee to manage property for beneficiaries based on wishes of the settlor or creator of the trust. There are several types of trusts.
• Preneed Guardian is a legal document. The Preneed Guardian allows someone to identify a person to serve as their guardian, before the need for a guardian exists. Also, it may be used for parents that would like to identify a guardian for their minor children, should the parent pass away before the children reach the age of 18.

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