Guardianship and Incapacity Proceedings

Guardianship and Incapacity Proceedings

When a person is no longer competent to make decisions affecting their finances or personal well-being, it may be necessary to begin guardianship and incapacity proceedings in order to ensure that person and their assets are properly cared for and managed.

Guardianship and incapacity proceedings operate simultaneously with one another, with the appointment of a guardian being dependent upon the findings of the court in the incapacity proceeding.  In proceedings to determine incapacity, the court determines whether, and to what extent, an alleged incapacited person lacks capacity regarding their “property” and their “person.”  If the alleged incapacited person has some level of incapacity, the court will evaluate whether the alleged incapacitated person has advanced directives in place, such that a guardianship is not necessary.  If so, no guardian is appointed.  If not, the court will consider the expressed wishes of the ward (or the ward’s family, if the ward is unable to express such wishes) and the qualifications of the proposed guardian and will appoint a guardian commensurate with the incapacities previously found by the court.

At The Merriman Law Firm, P.L.L.C., we have experience representing clients in guardianship proceedings.  Robin D. Merriman II, J.D., LL.M., B.C.S., has represented family members bringing guardianship actions to protect their loved ones, as well as guardians who are charged with various fiduciary duties related to their role as guardian. He has represented both professional and non-professional guardians.  He has also litigated various issues in guardianship and incapacity proceedings, including the incapacity of the alleged incapacitated person, the appointment of the guardian, the implementation of lesser-restrictive alternatives, and the administration of the guardianship.

Robin has also handled guardianship cases on appeal to the Second District Court of Appeal for the State of Florida.   In Covey v. Shaffer, 277 So. 3d 694 (Fla. 2d DCA 2019), Robin helped obtain a written opinion in which the Court held that an alleged incapacitated person had a right to a hearing prior to the institution of an emergency temporary guardianship.