How does a guardianship end? Well, there are several scenarios as far as a guardianship is involved. Let’s first talk about what is a guardianship. That’s whenever you have someone appointed to take care of the ward, and the ward does not have all of their rights, as far as that’s concerned. It could be a minor who cannot have the right to contract till they reach of majority, and so you could have a guardianship for a minor who doesn’t have a right to contract. Then you have the incapacitated person who does not, is mentally not capable of executing their documents or they’re found to be incapacitated and therefore someone’s been appointed as their guardian.
Let’s start with how do you end a guardianship for a minor. Well, that’s fairly easy. Once they reach the age of 18, well then you can terminate the guardianship and you turnover whatever the assets are to the ward. That’s how that would end. Then you go to the guardianship where you have an incapacitated person and it can end if the person who’s incapacitated or the ward, if they petition the court and have their competency or competency hearing to show the court that they have their competency, that would terminate the guardianship. That rarely happens, but that is another way to terminate a guardianship.
The most common way, particularly when you have incapacitated person’s, is whenever they pass away, that would end the guardianship. Then the money would then pass to their state or probate proceedings as far as that is concerned. If you have a guardianship or would like some advice, you can contact our office. We have Erica Muns has joined our firm and has some experience with guardianship’s and would be pleased to meet with you and talk to you about the expense, and whether or not it can be terminated. Guardianship’s are court supervised proceedings. They’re closely monitored by the court, particularly the money involved. If you have any questions, give us a call at 727-847-2288.
What is a guardianship of minor property. Well, guardianship for minor property is necessary any time a person under the age of 18 years old receives over $15,000. Well, one might ask, “How would a person under 18 years of age receive over $15,000?” The most common situations generally involve either an inheritance from a loved one or an injury settlement related to, generally, automobile accidents. Now, obviously, there are many other situations in which a child can receive over $15,000, but those are generally the most typical types of situations. A lot of times children will receive monies under insurance policies. Well, those monies, even though they don’t go through a probate proceeding, are still going to be subject to a guardianship of minor property.
A guardianship of minor property is not an option. Some people will ask, “Well, if my child is 15 years old, can I not just leave the life insurance proceeds with the life insurance company for the next three years until they reach the age of majority, and then they can take it out themselves?” Generally, the answer is going to be “No.” The life insurance company does not want to continue to hold those funds. They want to pay out the claim and they want to close the case.
With respect to that, it’s important to associate yourself with an attorney that specializes in this area of the law. I specialize in this area of the law at the law firm of Waller & Mitchell. If you or anyone you know has a child under the age of 18, and they’ve received an inheritance or a settlement as a result of an injury, please have them give me a call at the law offices of Waller & Mitchell at 727-847-2288 so I can help assist them with this matter.
What is the difference between a guardianship and an adoption? Well, there are completely different procedures involved. Let’s talk about an adoption. An adoption usually involves a minor child and that means whenever you adopt someone, that they become like your natural born child and you have to give notice to the natural parents or get their consent, as far as that’s concerned. There is basically a boorish child services that provide a range for adoptions particularly when the parental rights had been terminated through a court proceeding.
An adoption is where you cut off all the rights of the natural person or natural parents and then the child becomes like the natural children of whoever the people are or the persons who adopt them. They no longer inherit or have a right to inherit from their natural parents. Their natural parents have no right whatsoever. All their parental rights have been terminated. That doesn’t mean that the adopting parents may not in particularly if they know about it or if it’s a family adoption that they may not still keep them, let them see their natural born child or contact, but that’s done on a case by case basis. That’s where you completely terminate the parental rights of someone.
Turning to a guardianship, in a guardianship, just breakdown the word as far as guard or guardian, that means someone that’s put in the position to protect a particular person. Guardianship’s can be for minors, since they are not of age and don’t have the ability to contract, particularly if the minor has inherited a lot of money or has received a lot of money.
The guardian, number one doesn’t adopt this person and then become their child, but they are charged with possibly making decisions as far as what they call a ward or the person who is subject to the guardianship and make decisions about their welfare. You know, what kind of medical treatment and make decisions if it’s a child, as far as schooling, [inaudible 02:48], and basically raising the child. If it’s an elderly person, as far as where they would stay, whether they need to be have assisted living, whether they need to be in a skilled nursing facility. You have the guardian of the person who makes those decisions.
As with the minor, you also have the guarding of property. The guarding of property is a person who’s responsible for the money that the minor is … If you have a minor who has money or if you have an older person who has become incapacitated, they are charged with taking care of that persons money. They must have an accounting. Guardianship’s are supervised by the court, so that you have to prepare an annual accounting. With older folks, you have to file a plan as far as where they’re going to be. You have to have all the expenses and everything else approved by the court. It’s not an inexpensive proceeding and it’s usually followed by an incompetency proceeding.
A guardianship has to do with taking care of somebody, both as the guardian of the person and also as the guardian of the property, taking care of their money and accounting for it, and using it for the person or who’s called the ward. Usually requires they bond so that if you don’t use it, they have someone to look to. Guardianship’s and adoptions are completely different procedures. The adoptions are usually with minor children whenever the parental rights have been discontinued or there’s some family matter where they want to have the child be adopted by some other member of the family.
If you have any questions, we don’t handle adoptions here, however, we do handle guardianship’s. If you have some questions about guardianship’s, you can give us a call. It’s 727-847-2288.
What are some signs that my loved one may need a guardianship? Well first and foremost, any time you’re thinking about filing a guardianship proceeding, you have to consider whether or not there’s a lesser restrictive alternative. Well what is a lesser restrictive alternative? Well a lesser restrictive alternative in this situation would be a power of attorney. If your loved one has a valid, durable power of attorney that has an agent named, and that agent is acting on their behalf and is not abusing the power of attorney, then most courts are going to find that a guardianship is not necessary because there is already in place a lesser restrictive alternative, which is a power of attorney.
But let’s just say you’re in that situation where your loved one did not execute a power of attorney prior to incapacity. What are some of the signs that you may notice that your loved one may need a guardianship? Well one sign would be spending their resources, such as money, selling their home, doing things that don’t make sense to their financial plan.
Now we can’t stop people from making poor financial decisions, but a great example that I could give you would be if your loved one has decided to invest $30,000, within the last month, in vacuums. Well that’s not really a prudent investment, and beyond not being wise financially there may be something more going on. Possibly your loved one is being manipulated, and may not be making the financial decisions for themselves.
That’s just one example. Another example would be if you’re starting to see that your loved one cannot manage their health, cannot manage their person, and cannot manage things that are necessary to their person and to their well being. Again, if you do not have a valid power of attorney in effect, a lot of the times a guardianship proceeding will be necessary.
Those are just some of the things to look out for to see whether or not your loved one may be a viable candidate for a guardianship proceeding. If you have any other questions regarding a guardianship, please refer to give me a call here at Waller & Mitchell at 727-847-2288.
How do you know if someone is considered legally incompetent?
Well, I’m gonna take the easy road first, as far as that’s concerned. If you’re under the age of eighteen in the state of Florida, you’re not an adult, and so legally you’re not competent to contract. And so you’re not legally competent. And when this comes in to play is whenever you’re to receive a great deal of money, then it may require a guardianship. If the minor is to receive, let’s say from an estate, an inheritance and the amount of money is less than $15,000, then the natural parents can accept this inheritance in behalf of the minor child, or the minor who is legally incompetent.
Also, when it comes to contracting, you can contract with a minor, however it’s not legally binding on the minor. After he turns – any time before age eighteen, he can disavow the contract. After he turns eighteen, he has a reasonable time in which to disavow the contract, or he can ratify the contract after he turns age eighteen.
Now as far as people, other people who are considered legally incompetent, that usually comes with an incapacity hearing; and it’s related to a guardianship proceeding, wherein the judge has a hearing and has a panel of three professional – mental health professionals. I believe it’s a psychiatrist and some other people serve on a panel, and they have a recommendation after they interview the alleged incapacitated person. In a guardianship proceeding, they appoint a lawyer to represent this person, and as a result of being incapacitated, the person loses all of their rights. And so it’s a trial and in order for the judge to consider that, since it’s a drastic measure, many times the judge will not declare somebody totally incapacitated, may still give them the right to do certain things such as vote and other matters. But you tell whether or not someone is legally incapacitated or incompetent by an order, which the judge enters finding that they’re incompetent.
So if you have any questions about capacity, incompetency, give my firm a call. It’s 727-847-2288. My associate, Jaleh Piran-Vesseh is one who handles elder law and guardianships