Your mother has stopped opening the bills. A new friend drives her to the bank. Last week she wired money to someone she has never met. You want to step in, and you find out that in Florida no one, not a spouse and not a child, automatically has the legal right to manage another adult’s affairs.
That is where this video starts. It is animated, it runs about seven and a half minutes, and it is written for the family member, not the person in decline. It covers four things in order: what can be done without a court, when a guardianship becomes necessary, what a guardianship actually is, and how one is established in Florida.
The first question a guardianship lawyer asks is what documents already exist. Florida law requires the form of help that interferes least with the person’s rights, and a judge may not appoint a guardian if a valid durable power of attorney, health care surrogate designation, or funded revocable trust already does the job. Sections 744.1012 and 744.331(6)(b) of the Florida Statutes say so. The catch, and the video spends real time on it, is that every one of those documents has to be signed while the person still understands what she is signing. Once that window closes, only a court can create authority.
A guardianship becomes necessary when there are no documents and no capacity left to sign them, when the documents exist but are being misused or were signed after the decline began, or when there is no time. For the last case Florida has the emergency temporary guardianship under section 744.3031: a judge can appoint a temporary guardian within days on a showing of imminent danger to the person or her property, for ninety days with one extension. It is not a finding of incapacity, and it does not become a permanent guardianship on its own. The regular case is filed at the same time.
The regular case runs on a statutory clock. Two petitions are filed together. The court appoints a lawyer for the alleged incapacitated person right away, and within five days appoints a three-member examining committee, at least one of them a physician. Each member reports within fifteen days, and if a majority finds the person not incapacitated in any respect, the petition must be dismissed. Otherwise there is a hearing, generally within thirty days after the last report, where incapacity must be proved by clear and convincing evidence, right by right. The judge removes only the rights the person cannot exercise, and only if nothing less restrictive would work.
Then the job starts. Letters of guardianship, an inventory and initial plan within sixty days, an eight-hour course, an annual plan and an annual accounting reviewed by a court auditor, and a court order before the house is sold or the ward is moved out of state. Most adult guardianships last for the rest of the ward’s life. If the family cannot agree on who should serve, the court often appoints a professional guardian instead of any of them.
The video is general information about Florida law, not advice about your family. Jill Ginsberg, who is Board Certified in Elder Law by The Florida Bar, handles the firm’s guardianship and elder law matters in Broward and Palm Beach counties. If the person you are worried about can still sign, the cheapest and kindest move is to get the documents done now. If she cannot, the sooner the call is made, the more there is left to protect.