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Why Should I Think About Incapacitation and Guardianship?

How much do you know about guardianship? A guardianship allows one person or entity to make decisions for another, referred to as the ward. This is especially important in times of incapacitation and disablement. Mark Eghrari highlights three things people need to know about incapacitation and guardianship that they may be unaware of.

  1. Guardianship can be avoided with a Power of Attorney (POA) and healthcare directives.

  • A Durable POA gives you the opportunity to choose who will be able to make financial decisions on your behalf and follow your wishes.

  • An advance healthcare directive identifies what steps should be taken if you can no longer make your own health decisions due to incapacitation or disablement. It is ultimately used to prevent unwanted medical treatment.

  • To prevent guardianship, the POA and healthcare directive documents must be clearly and properly written while also meeting all the legal requirements.

  1. Guardianship is established through court proceedings. However, procedures regarding guardianship vary from state to state.

  • In Florida, a person seeking guardianship can file a Petition to Determine Incapacitation, a Petition for Appointment of Guardian and an Application for Appointment as Guardian.

  • The extent of incapacitation and whether a guardian is necessary is determined through a three-member examining committee, including a psychiatrist/physician, a medical professional and a medical professional with expertise in the type of incapacitation the ward is exhibiting. Each member of the committee writes a report and files it with the court.

  • A guardian must perform an educational course for guardians and submit criminal and background checks to the court.

  1. The court order will limit the scope of your decisions as an appointed guardian.

  • The court specifies what power(s) the guardian has. For example, a guardian may only make financial decisions or he/she may make legal, financial and lifestyle decisions. This differs depending on the particular case.

Why should people be thinking about incapacitation and guardianship?

Life is unpredictable. If for some reason you become incapacitated and are unable to make decisions, someone will have to make those decisions on your behalf. A POA and healthcare directives put these decisions into writing and prevent any controversy regarding guardianship. Guardianship can often be costly and stressful. A POA and healthcare directives limit controversy and state exactly what the ward’s wishes are.

Terms to Know:

Ward- incapacitated or disabled individual

Petition to Determine Incapacitation- states that the ward requires a guardian

Petition for Appointment of Guardian- petitions the court to appoint a guardian

Application for Appointment as Guardian- asks the court to appoint you as the guardian


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