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Bill Approved Affecting Guardianship in Florida

Posted on: March 23rd, 2015
guardianship changesGuardianship laws can help to ensure that adequate care is provided for a minor, an incapacitated adult, or a special needs individual. However, these laws are neglected at times. In 2014, news reports surfaced over an investigation of Florida guardianship abuse by court-appointed guardians. If a family member or individual is concerned about the conduct of a guardian, what can they do? Currently the law provides them the option to submit a complaint to a probate judge. Several bills that have been approved—and others that are sponsored as of this writing—could change this process. 

Senate Bill 1226 proposes the founding of a new agency exclusively dedicated to guardian supervision. The potential agency, which would be called “The Office of Public and Professional Guardians,” would be structured to impose disciplinary actions and monitor guardian conduct. 

Currently, when a petition for incapacity is filed in Florida, any powers of attorney the individual had in place would be suspended automatically. This could create serious conflict among families, and also prevent important financial and medical decisions from being made in a timely manner. Senate Bill 318 proposes to remove this automatic suspension.

As the law stands now, any adult may file a petition with the court to determine another person’s incapacity. The court appoints an attorney to represent the potentially incapacity individual. Then a court-appointed committee examines the individual and submits a report. If the committee agrees with the petition, a hearing is scheduled where total or partial incapacitation will be determined. Generally, a guardian is appointed at the closure of the hearing. Senate Bill 318 sets forth new requirements that would make it more challenging for an individual to be declared incapacitated. The bill’s provisions also include options for family to pursue guardianship disputes out-of-court through mediations and arbitrations. According to the Herald Tribune, the bill “would require advance notice be given to the allegedly incapacitated person and their attorney if a petition for a guardianship is sought. It would also reduce the time for temporary guardians from 90 days to 60 days and it would discourage courts from appointing temporary guardians as a permanent guardian of a ward.”

Costs of guardianship in Florida could deplete an individual’s assets. Trusts and other planning tools can help structure assets to cover guardianship fees and preserve assets for family. Courts currently determine and approve professional guardian fees. House Bill 5, if passed, would cap Florida guardian fees, and powers in some circumstances. 

Possible guardianship law changes should prompt many individuals to update their estate plans. Follow our estate planning attorneys in Miami on Twitter and Facebook to learn about legislation changes as they happen.
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