In cases when a person lacks “capacity” under the law to adequately care for himself or herself due to functional limitations – such as a developmental disability, dementia, another chronic illness or condition or other extenuating circumstances – a guardian can be appointed by a court to oversee the care of that person, known as the ward.

Guardianship is considered a last resort, and the laws governing the responsibilities of the guardian and the rights of the ward are complex. Which is why Florida statute requires all guardians to retain the services of in-state legal representation – such as the attorneys of Tripp Scott’s Guardianship practice who bring have significant experience in all facets of establishment, administration/reporting and litigation.

Comprehensive Administration

Establishment of a guardianship occurs through a process involving:

• a petition to the court alleging incapacity of the potential ward (the alleged incapacitated person, or AIP)

• determination of incapacity by an examining committee of healthcare professionals or experts

• submission of a report to the court including diagnosis, prognosis and a recommended course of treatment

• a hearing involving review of the report and investigation of less restrictive alternatives

• if necessary, appointment of a guardian and issuance of letters of guardianship.

Establishment of a guardianship occurs through a process involving:

• Guardian of the Person: authority to rights including the right to contract, apply for government benefits, sue and defend lawsuits, to manage, give or dispose of property, choose a residence and consent to medical or mental health treatment.

• Guardian of the Property: authority to sell, transfer, mortgage or donate any of the ward’s property only with prior approval from the court.

• Guardian of the Person and Property: responsibility to make decisions regarding both the personal and property rights of the ward.

Guardians must take training and file reports including an initial plan, an annual plan, and initial inventory and annual accounting.

Tripp Scott attorneys can assist in all facets of this process and subsequent administration including:

• the petition and determination of incapacity, including representation before the court

• the initial establishment of the guardianship

• full compliance with the reporting and accounting requirements for the Court regarding the physical, mental, and social well-being of the ward.

Expert Litigation Support

Litigation can be necessary to resolve disputes in matters such as:

• whether an individual lacks capacity or less restrictive alternatives exist

• who should fulfill the role of guardian

• whether a guardian should be removed for improper execution of duties or misappropriating property.

The attorneys of Tripp Scott have expertly and successfully represented litigation clients including:

• guardians seeking to defend themselves and their wards against the predations of people who do not have the ward’s best interests at heart and

• relatives and loved ones of incapacitated persons concerned about the manner in which a guardian is performing appointed tasks

• Pre-litigation investigation, trial and, if necessary, appeals, are a part of the practice.