Who needs a Guardianship?
An adult person who has been determined incapacitated or a minor child who has received an inheritance or proceeds of a lawsuit or life insurance policy in excess of $15,000.00 will need a guardianship established. A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person or a minor child. The process is governed by Chapter 744, Florida Statutes.
Probate Administration is a court-supervised process that identifies and gathers the assets of a deceased person (decedent), pays the decedent’s debts and distributes the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. There are two types of probate administration under Florida law: formal administration and summary administration.
There is also a non-court supervised administration proceeding called ‘Disposition of Personal Property Without Administration.’ This type of administration applies only in limited circumstances.
Why Is A Probate Necessary?
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid will, unless the will is admitted to probate in the court, it will be ineffective to pass ownership of probate assets to the decedent’s beneficiaries. If the decedent had no will, probate is necessary to pass ownership of the decedent’s probate assets to those persons who are to receive them under Florida law.
Probate is also necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
What assets are involved in the Probate Process?
Probate assets are those assets that were owned in the decedent’s sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Some examples are bank accounts, investment account, life insurance policy, annuity, retirement account, and real estate property. If any of these assets list a beneficiary or a paid on death clause, then they are not considered a probate asset. Property held by spouses is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse. (The above list is not exclusive, but is intended to be illustrative.)
Who May Serve As A Guardian?
Any adult resident of Florida, related or unrelated to the potential ward, can serve as a guardian. Certain relatives of the ward who do not live in Florida also may serve as guardian. However, people who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Individuals who are professional or public guardians can serve as guardian. Additionally, institutions such as a bank trust department or nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the property. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of pre-need guardian or at the hearing.
How Is A Person Determined Incapacitated?
Any adult may file a petition with the court to determine another person’s incapacity, setting forth the factual information upon which they base their belief that the person is incapacitated.
The court then appoints a committee of three members, usually two physicians and another person who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.
The examination of the incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.
The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are lesser restrictive alternatives to guardianship that adequately address the person’s incapacity.
If you have a family member who you believe to is incapable of making certain decisions for themselves, contact our office to schedule a free consultation.
ZAPICO & ASSOCIATES, PA.