Guardianships

In the event an individual is unable to manage his/her own affairs and advance directives have not been completed, Elder Law Associates PA advises clients regarding all aspects of legal guardianship proceedings.

The guardianship process requires the filing of court documents, the appointment of an Examining Committee for the purpose of reporting to the court its recommendation regarding the need for the appointment of a guardian, attendance and presentation of evidence at a court hearing, and the post-appointment filing of court documents.

Children and other relatives, such as nieces, nephews and cousins, frequently consult Elder Law Associates PA about their legal rights and obligations when a guardian proceeding is commenced either by the Department of Children and Families or another family member. In many cases, the children and other relatives live out of state, making it extremely difficult to participate in the guardianship process. Elder Law Associates PA fills this void by attending all hearings scheduled by the court and filing legal papers with the court outlining our clients’ position regarding the need for the appointment of a guardian, who the appointed guardian should be, the development of a care plan for the ward and the development of a plan for the management of the ward’s assets.

In some cases, guardianship matters are adversarial due to family conflicts. Elder Law Associates PA has extensive experience handling contested guardian proceedings. Therefore, we are able to guide our clients through very difficult and often emotional proceedings.

Guardianship Advocacy (Florida)

A guardian advocate may be appointed by the court if an adult person has a developmental disability and lacks the capacity to do some of the tasks necessary to care for his or her person, property or estate. This is the least restrictive, and less costly, type of guardianship for persons with developmental disabilities and does not require a determination of incapacity or the appointment of an examining committee. Usually, a parent files for appointment as guardian advocate after a disabled child reaches the age of 18 as the parent no longer has the ability to make decisions for the adult child.

The guardian advocacy process requires the filing of court documents, attendance and presentation of evidence at a court hearing, and the post-appointment filing of court documents. A guardian advocate is obligated to file all paperwork required under a traditional guardianship, including annual plans and accountings.

Elder Law Associates PA advises clients regarding all aspects of legal guardian advocacy proceedings.

We provide Guardianship Litigation services to the following cities/municipalities and the surrounding communities in South Florida.

Foreign Guardianship

It is no surprise that many people choose to move from their long-time home in New York to the warmth and sunshine of Florida in their later years. For those placed under guardianship, additional issues arise that are not encountered by people who retain their independence when it comes to the relocation process. These wards, with their guardians, must transfer their guardianship appointment from one state to another, which can ultimately delay, or in some cases, thwart the ward’s ability to move altogether. While many states are moving toward a uniform system to allow for a quick and simple guardianship transfer, Florida is not one of those states.

A person placed under New York guardianship may only gain control over New York real property, requiring the appointment of an additional guardian to attend to any Florida real property the individual may own.

Fortunately, we at Elder Law Associates PA are well-versed in New York and Florida guardianship requirements and are ready, willing and able to assist you and your clients. With one of its partners (Howard S. Krooks, Esq., CELA, CAP) admitted to both bars and actively practicing in both New York and Florida, no one else understands more than us the most effective way to assist you with a variety of foreign guardianship concerns.

Qualifications and Requirements to Serve as a Florida Guardian

In certain circumstances, residents and non-residents alike may serve as guardians in the state of Florida. Much like the requirements to serve as a Personal Representative, Florida residents must only be 18 years of age or older to qualify to act as a guardian, while non-residents must also be an acceptable non-resident family member of the ward in question. Certain otherwise eligible people may be disqualified due to felony convictions, incapacity, illness, or if the person has been found by the court to have committed specified acts that demonstrate an inability to act as a guardian. These restrictions also apply to out-of-state, or foreign, guardians. As such, even long-time guardians may find themselves suddenly disqualified and precluded from acting on behalf of their ward upon relocation to Florida. Once qualified to act as a guardian in Florida, individuals may be required by the court to receive education covering their duties and responsibilities, their ward’s rights, and the availability of resources. Additionally, every guardian, foreign or not, must have legal representation by an attorney admitted to practice in Florida. However, a guardian may represent himself/herself if the guardian is a Florida attorney. There are no obstacles precluding a foreign guardian bringing or defending any action in Florida on behalf of his/her ward.

Foreign Guardians in Florida

Guardians of New York wards do not automatically obtain authority over their ward’s Florida property. If a foreign guardian wishes to manage the non-resident’s Florida property, not only must the foreign guardian be qualified to act in his or her role (see above), but he or she must file a petition with the Florida court to do so. The foreign guardian’s petition must include his or her appointment as the ward’s guardian, a description and estimated value of the property, and any indebtedness existing against the ward in Florida. The foreign guardian also must designate a resident agent and file an oath in accordance with the Florida Probate Rules, and file his or her New York Guardian Commission and security bond. The court will then determine whether this information is sufficient to guarantee faithful management of the ward’s Florida property. If the bond is determined insufficient, the court may require a new guardian’s bond in the amount it deems necessary.

If a New York guardian does not meet the Florida Guardianship requirements, or does not wish to manage out-of-state property, he or she may alternatively petition the Florida courts to appoint a Florida guardian of the New York ward’s Florida property. This petition also may be brought by the ward’s next of kin or a creditor of the ward, regardless of the existence of a foreign guardian. If said petition alleges a mental or physical incapacity, the court must be provided an authenticated copy of the incapacity adjudication as well as the name and address of any custodian of the ward and notice must be served upon the ward, his or her next of kin, and any legal custodian at least 20 days before the petition hearing. If the ward is temporarily residing in Florida, the ward has not been adjudicated incapacitated in New York, and the petition alleges incapacity, then the appointment of a Florida guardian of the ward’s Florida property will proceed as if the ward were a resident of the state.

Transferring Guardianship Between States

What if the New York ward wanted to move to Florida? In order for this to occur, the New York Guardianship Court would need to issue an order approving the transfer of the ward. This transfer would require two separate and simultaneous proceedings. The process begins with the guardian’s petition to the New York court to allow the transfer to Florida. Upon provisionally granting the petition, the guardian must then petition the Florida court for a determination of incapacity and appointment of guardianship. Once the petition is granted by the Florida court, the New York court will grant a final order approving the transfer of the guardianship to Florida.

If you have questions about Florida or foreign guardianship, please don’t hesitate to contact us at 1-800-
ELDERLAW
or (561) 750-3850, or email info@ElderLawAssociates.com.