Florida has many type of guardianships that can be helpful under many different circumstances. Under many scenarios, someone has lost or never had the ability to make their own legal decisions, such as through an accident of some type, dementia, or other type of cognitive issues. In these scenarios, a guardianship is likely necessary so that a guardian is appointed to help make sure the ward is protected and provided for. The guardianship process is quite lengthy and time consuming under most circumstances. The steps of a plenary guardianship generally includes the following:
- Petition the Court to appoint a guardian
- The Court appoints an attorney to represent the alleged incapacited person (AIP)
- The examination committee of three people examine the AIP to help determine his or her capacity
- A hearing is held on the examining committee's findings and if a guardian is needed, a guardian is appointed
- The guardian is bonded and letters of guardianship are issued
It generally takes 2-3 months for this full process to be completed, unless there is litigation/contested proceedings, at which point the guardian will now be able to help the ward. But this process is much too slow in certain scenarios, and Florida law created a fast-track procedure to help make sure the AIP can be protected much quicker than the regular process. Here, emergency temporary guardianship statute allows an emergency temporary guardianship to if the alleged incapacitated person appears:
- to be in imminent danger that his or her physical or mental health or safety of the person will be seriously impaired; or
- that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.
Once a petition for incapacity is filed, the court may make the emergency appointment of the guardian in these limited circumstances only. Importantly, the emergency temporary guardianship only lasts for 90 days, so it is specifically designed to be temporary (hence the name) until a full guardianship hearing can be held. A court hearing must still take place to confirm that even an emergency temporary guardianship is necessary.
Examples of Emergency Temporary Guardianships
Here are some examples of when an emergency temporary guardianship can be useful:
- Mom, age 80, has dementia, and she lives alone. She has a caregiver that has been taking advantage of her and may be stealing her money. The caregiver has even become Mom's power of attorney, even though Mom cannot understand the power of attorney. Mom does not recognize or even understand that the caregiver has taken her money. But, since the caregiver may have taken funds and Mom is not cooperating with the police due to her dementia, an emergency temporary guardianship may be needed to act quickly to protect Mom and her money from her predatory caregiver.
- Dad, age 70, has a car accident, has a traumatic brain injury and did not create a power of attorney. No one can manage his financial affairs. Dad is now in a skilled nursing facility undergoing rehab, but the nursing home bill is over $10,000 per month. Due to the immediate need to manage Dad's finances to pay for his Medical care, and the fact that the nursing home wants to get paid, the court would likely allow an emergency temporary guardianship to make sure that Dad continues to get good care in the skilled nursing facility and that his medical bills can be paid.
- Dad, age 80, has dementia and has even created a durable power of attorney. Dad lives at home alone but his local son, who is his power of attorney, is helping make sure Dad is safe. But, Dad has another son who lives in Ohio and this son, who has a history of taking advantage of Dad, is planning to take Dad up to Ohio. Dad is not able to make his own decisions and he is easily manipulated. The power of attorney cannot prevent the "bad son" from taking Dad to Ohio and because a normal guardianship procedure would take too long to prevent the bad son from putting Dad in a car and driving up north, the good son would petition for the emergency temporary guardianship to help make sure Dad is protected and stays here in Florida.
Proceedings After the Guardianship
Once the judge decides that a emergency temporary guardianship is necesarry and one is appointed, the guardianship process will still continue. Now, the examining committee will need to make their assessment, a full hearing will be held, etc. But it is the hope that the emergency temporary guardianship will help make sure the ward is protected until the full guardianship hearing can take place.
Florida Elder Exploitation Injuction
If an elder is being exploited, you may need to look at filing an elder exploitation injunction to help. This process may be better when, for instance, the elder has not lost capacity, or the issue is in doubt, but the elder is being exploited or in danger of being exploited.
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