Florida Plenary Guardianship Laws
What is a plenary guardianship?
Plenary guardianships are a vital legal mechanism in the state of Florida, designed to protect and assist individuals who are unable to make decisions about their personal well-being and property due to incapacity. A plenary guardianship is a comprehensive and all-encompassing legal arrangement, granting the guardian full authority over the personal and financial affairs of an incapacitated individual. The purpose of a plenary guardianship is to ensure that the best interests and well-being of the incapacitated person are protected.
Plenary guardianships are typically considered when an individual’s incapacity is profound, and they cannot make informed decisions regarding their health, safety, personal matters, or financial assets. Unlike the restrictions placed on the Guardian of the person and the Guardian of the property, a “Plenary Guardian” represents a complete guardian. It’s an individual appointed by the court to wield all the transferable legal rights and authority of the Ward, following the court’s determination that the Ward is incapable of handling all the essential responsibilities related to their personal well-being and assets. This form of guardian is typically designated for elderly or disabled individuals who are unable to independently oversee any of their personal or financial matters.
These arrangements are complex and require careful legal processes to be established, ensuring the rights and dignity of the incapacitated individual are respected.
Steps to Being Named a Plenary Guardian in Florida
Becoming a plenary guardian in Florida is a significant responsibility, and the process is guided by strict legal requirements. Here are the key steps involved:
Petition for Guardianship: The first step is to file a petition for guardianship with the circuit court in the county where the alleged incapacitated person (AIP) resides or is found. The petition should provide detailed information about the AIP’s condition, including medical, financial, and personal aspects, along with reasons why guardianship is necessary. Appointment of an Attorney: It is crucial for the AIP to have legal representation throughout the process. The court will appoint an attorney to represent the AIP’s interests and ensure their rights are protected.
Medical Examination: The court will order a medical examination of the AIP to determine the extent of their incapacity. This examination must be conducted by a physician typically a psychiatrist in cases involving mental health. Notice to Interested Parties: The court will require notice to be given to all interested parties, including the AIP, their family members, and any other relevant individuals. This notice informs them about the guardianship proceedings and their right to participate.
Capacity Evaluation Committee: The court may appoint a committee to evaluate the AIP’s capacity and report its findings to the court. The committee consists of three members, and typically consists of the following:
- at least psychiatrist or other physician,
- one licensed professional with the training, education, and experience with the incapacity alleged, typically another physician, psychologist, licensed clinician, and
- a layperson who has the knowledge, experience, and skill necessary to render an expert opinion.
Best Interests Attorney: If the court determines that the AIP is incapacitated, a “best interests attorney” may be appointed to advocate for the AIP’s best interests.
Hearing: A formal hearing will take place, during which evidence is presented and witnesses are called to testify. The judge will then make a determination about the necessity and scope of the guardianship.
Plenary Guardian Appointment: If the court decides that a plenary guardianship is warranted, it will issue an order naming the plenary guardian and specifying the extent of the guardian’s authority, which may include both personal and financial decisions.
Do you need to contact a guardianship attorney?
The process of becoming a guardian, whether plenary or not, is highly regulated and involves multiple steps to ensure that the rights and interests of the incapacitated individual are upheld. Florida courts need to balance the most fundamental rights granted under the constitution. This is one of the reasons that it’s essential to work with an experienced attorney to navigate this complex legal process effectively and ethically, adhering to Florida’s guardianship laws.
