In Florida, probate is necessary for situations wherein a deceased person died leaving assets titled solely in his or her name. If an estate qualifies for probate, an interested party must file a petition in court, which will oversee the probate process and ensure proper distribution of the decedent’s property.
What if there is a process of guardianship involved in Florida probate? Keep reading to find out.
Guardianship in Florida – Understanding the Concept
As provided by Florida Statutes §744.1012 (1), “the Legislature finds that adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary.”
Hence, Florida Statutes §744.1012 (2) establishes that “it is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs and that alternatives to guardianship and less restrictive means of assistance (…).”
Under guardianship, the person for whom a guardian has been appointed is referred to as a “ward” while the “guardian” is a person who has been appointed by the court to act on behalf of a ward’s person or property or both.
In Florida, a court may appoint a guardian of a person and property, or a guardian exclusively dedicated to a person or a property.
Probate and Guardianship in Florida – As Provided by Law
Rule 5.030(a) of the Florida Rules of the Civil Procedure provides that “every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida.”
The same rule adds that “a guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative. “
With proper legal representation, an individual may file for a guardian to be appointed for a minor or an adult person they believe is not mentally competent to handle his or her own affairs.
Probate and Guardianship in Florida – Understanding the Process
When someone is filing a guardianship petition on an adult, it is mandatory to file an accompanying petition with the Mental Health Department to determine whether the “ward” is actually incapacitated.
The Mental Health Department will proceed with an in-depth evaluation of the person through a designated committee. Upon completing the evaluation, the committee will file a report to the court.
Please note that it does not apply for cases involving a guardian advocate petition on behalf of a developmentally disabled individual. In guardian advocate petitions, neither the petitioner is required to file with the Mental Health Department, nor the ward must go through the examination process.
Also, Florida guardianship applies for minor children who inherit assets whose value exceeds $15,000 from a deceased relative or received an amount in excess of $15,000 from a settlement.
If one of the minor child’s parents is alive, the child needs only a guardian of the property. In case the minor child’s parents are dead or unable to serve as a guardian, the child may need a guardian for him or herself and the inherited property.
Immediately Contact Your Florida Probate Lawyer
Without proper legal advice, probate cases involving guardianship may result in an overwhelming situation. Immediately call Attorneys Romy B. Jurado and Diana L. Collazos at (305) 921-0976 or email [email protected] for expert legal guidance.