How Is A Guardianship Created If The Incapacitated Person Has No Assets?

When a parent of a developmentally disabled child who reaches the age of maturity in Florida, which is 18 years old, needs to be able to help manage some finances and most commonly make medical decisions for the developmentally disabled child, then that parent needs to seek guardianship through an abbreviated guardianship proceeding called guardian advocacy. In a situation where the developmentally disabled person does not have any assets him or herself and may not have much income other than Social Security Disability payments, then fortunately the parent who is petitioning to be appointed guardian advocate does not need to be represented by an attorney in a proceeding. Technically the child is what we consider indigent and the parent who would be the applicant in the case can apply for indigent status and even ask the court to waive the court filing costs.

There are forms out there on how to get a guardian advocate appointed if there are no assets and the parent will have to complete those documents. This procedure to avoid using an attorney only applies unless the judge says that you must have an attorney or if a parent is asking for control rights of a developmentally disabled child regarding property. If we are trying to save money because the developmentally disabled child won’t or cannot sign or understand advanced directives such as a designation of healthcare surrogate or healthcare power of attorney then the guardian advocacy is a proceeding that must occur in order for the parent to be able to take control over medical decision making authority. Another way to initiate the proceeding is to go through, perhaps, a local nonprofit agency that can assign a case worker to help begin the process and then potentially make a referral to an attorney to provide legal services for free otherwise known as pro bono. In Jacksonville, Florida, the ARC can and normally does make referrals for this purpose.

What Are The Ways To Avoid Guardianship?

The ways to avoid guardianship are through properly drafted legal documents and good family communication. A guardianship relating to financials can typically be avoided with a durable power of attorney and/or a living trust agreement. Occasionally guardianships can also be avoided with joint accounts, but not always. The need for financial guardianship typically arises when somebody does not have legal documents that allow their family members or caregivers to manage finances and pay bills. With these legal documents in place, a guardianship certainly is not necessary. A guardianship of the person can be avoided through a designation of a healthcare surrogate. The designation of a healthcare surrogate names a medical decision maker. The medical decision maker won’t require court oversight unless their actions are challenged by a family member in a different legal proceeding. The final way to avoid guardianship is to have good family communication regarding the care of an incapacitated person. Guardianship usually occurs when there is a breakdown of family relationships and communications regarding care of a family member.

Maintaining good communications and boundaries about somebody who is incapacitated typically will avoid guardianship along with getting valid, updated legal documents.

For more information on Guardianship Of Indigent Incapacitated Person, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.