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How does someone become a guardian for a disabled adult?

Imagine this scenario: You have a close cousin. The two of you went through high school together, but in your junior year, she became disabled after suffering severe injuries in an auto accident. Her parents have approached you about becoming her successor legal guardian after they pass away.

You are not opposed to the idea, but you're unsure about the responsibilities or how to go about taking on a guardianship role.

Here is a basic overview of a guardian's role and the law in the State of Florida.

A judicial determination

When an adult person with mental disabilities is in need of care or decision making for personal and/or financial matters, it is required that they:

(1) be found incapacitated and

(2) that a qualified adult be named as their legal guardian to make those decisions.

Florida law allows for both voluntary and involuntary guardianships. The latter requires determination of incapacity during an adjudication hearing, followed by the transfer of the rights of the ward (your cousin) to the person named as the guardian.

However, when an adult's disabilities are much more physical than they are mental, a voluntary guardianship could be the more likely choice. Your cousin may still be mentally competent, but perhaps not fully capable of managing her financial affairs without assistance. If she is capable of understanding that, she can consent to you serving as voluntary guardian for her finances.

The limited guardianship

In many cases, courts approve limited guardianships. With a limited guardianship, you as a guardian will be required to manage some of the responsibilities of the ward, but only those that are necessary. This may be appropriate for your cousin, but the ultimate decision will be up to the judge, as each situation is evaluated on a case-by-case basis.

Civil rights

Florida law requires that individuals with guardianships are still provided basic civil rights. For example, your cousin still has the right to remain as independent as possible. She would retain the right to receive a proper education, access to a court of law and representation by an attorney.

However, during the incapacity determination process, a judge can remove other rights of your cousin, including the right to manage her money or property, or make decisions regarding medical, surgical, and mental health treatment. As a guardian, you may be required to make these and other decisions on your cousin's behalf.

One final matter

Only one further matter remains: You will have to take eight hours of court-approved training in order to assume your new role and become the guardian for a disabled adult.

If you still have questions about the law, the process, or relating to your individual situation, reaching out to a family law attorney with experience handling Florida guardianship matters is advised.

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Brandon Family Law Center, LLC

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