“Adult Guardianship: What Rights Can A Court Remove?” by OLDER LUNDY

August 25, 2021

There are many situations where adults may no longer be able to care for themselves or make certain decisions because of mental incapacity. If the incapacitated adult has not made prior legal arrangements, such as executing a power of attorney or a living trust, it may be necessary for a to petition a Florida court to create an adult guardianship.

Under a guardianship, a court delegates the right to make certain legal decisions for the incapacitated person (the ward) to an agent (the guardian). The court may also remove certain legal rights from the ward. Not all of these rights can be delegated to the guardian,. Some examples of non-delegable rights include:

  • the ward’s right to vote;
  • the ward’s right to personally apply for any government benefits;
  • the ward’s right to apply for, renew, or hold a driver’s license;
  • the ward’s right to travel; and
  • the ward’s right to seek or hold down a job.

Other rights than can be delegated to a guardian include:

  • the right to enter into a contract on behalf of the ward;
  • the right to sue or defend lawsuits in the ward’s name;
  • to apply for government benefits in the ward’s name;
  • to manage or dispose of any property belonging to the ward;
  • to decide where the ward will live;
  • to consent to any medical care the ward may require;
  • to make decisions regarding the ward’s social environment.

It is important to understand that guardianship is not an “all or nothing” proposition. The court may elect to only remove or restrict certain rights based on the ward’s situation. Indeed, Florida law makes it clear that judges should only impose the “least restrictive form of guardianship” on a ward, particularly in cases where there is only a partial disability.

One other thing to note: Although a court may delegate a ward’s right to enter into contracts to the guardian, that does not include contracts to enter into marriage. In cases where the court has removed a ward’s right to contract, the ward may only marry with court approval. But a guardian cannot compel a ward to enter into marriage.

Can a Florida Judge Ignore a Power of Attorney?

As mentioned above, proper estate planning can eliminate the need for a guardianship if an adult becomes incapacitated. A trustee named under a living trust can assume control over an incapacitated person’s property without the need for judicial intervention. Similarly, an agent holding a valid power of attorney may exercise many of the same legal powers as a guardian, but again without the need for a formal proceeding.

There are scenarios, however, where a court may suspend a power of attorney and still impose a guardianship. For example, if there is evidence that the agent has failed to discharge their duties, or abused their powers, the court may disregard the power of attorney and appoint a guardian instead.

If you are involved in a situation involving a potentially incapacitated adult and need legal advice from an experienced Tampa guardianship lawyer, contact Older Lundy Koch & Martino today to schedule a consultation.

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