Incapacity Proceedings

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Prenuptial and Postnuptial Agreements are not only entered into by couples who seek to have an estate plan that may not conform to the statutory scheme created by the Florida Statutes, but they may wish to determine what their rights and responsibilities will be in the event that the marriage ends in divorce. Generally, even though these couples are not primarily concerned about their estate planning, they do address their minimum obligations to each other, in the event of death.
At times there are more than one person who wish to serve as Guardian, or an interested person believes that the person applying to serve as Guardian is not qualified, or any multitude of problems may arise during the pendency of a Guardianship.
In the absence of a valid durable power of attorney, it is usually necessary for a court to appoint a person to serve as the incapacitated person’s guardian and to exercise so many of the following rights which would have been removed at the incapacity proceeding: to contract, to sue and defend lawsuits, to apply for government benefits, to manage property or make a gift or otherwise dispose of property, to determine his or her residence, to consent to medical and mental health treatment, to make travel decisions and to make decisions about his/her social environment or other social aspects of his/her life. There are additional decisions which are extraordinary and for which a Guardian must first obtain special authority from the Court. Guardians need to be represented by an attorney. The attorney will guide the Guardian in complying with Court requirements, getting authority from the Court (if needed) and opening and closing the Guardianship.

There are three (3) kinds of Guardianship and the Court will determine which is needed:

  1. Guardian of the Person: The Guardian makes decisions and seeks court authority to make decisions about the Incapacitated Person’s non-business, non-financial matters.
  2. Guardian of the Property: The Guardian makes decisions and seeks court authority to make decisions about the Incapacitated Person’s financial and business matters.
  3. Plenary Guardian: The Guardian makes the decisions set forth above for both the Guardian of the Person and the Guardian of the Property.
The Guardian of the Person must file an annual Plan; the Guardian of the Property must file an Inventory and Annual Accountings. The attorney gives guidance in the preparation of these documents and files them with the Court.

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