Brevard's Elder Law Firm
1800 Penn Street, Suite 6
Melbourne, FL 32901-2625
Phone (321) 676-2525

Guardians ad litem are usually attorneys who are appointed by Courts to represent a person's best interest in a particular area and in reference to a court proceeding. For example, guardians ad litem are frequently appointed in custody disputes to represent the best interest of a child. In a guardianship proceeding (Called an Elisor) they are appointed to make recommendations to the court about what would be in the best interest of the person (Ward)for whom the guardianship is being sought.

WHAT IS INCAPACITATED? Any adult may file with the court a petition to determine another person's incapacity setting forth the factual information upon which they base their belief that the person is incapacitated. The court then appoints a committee of two professionals, usually physicians, and a lay person to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated, called an Elisor. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing.

WHO MAY SERVE AS GUARDIAN? Any adult resident of Florida can serve as guardian. A close relative of the ward who does not live in Florida can also serve as guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of preened guardian or at the hearing.

WHAT DOES A GUARDIAN DO? A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward's support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions. The guardian of the ward's person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward's care.

IS A GUARDIAN ACCOUNTABLE? Yes. Guardians must be represented by an attorney who will serve as "attorney of record." Guardians are usually required to furnish a bond and may be required to complete a court­approved training program. The Clerk of the Court reviews all annual reports of guardians of the person and property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.

IS GUARDIANSHIP PERMANENT? Not necessarily. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, the court will have the ward reexamined and can restore some or all of the person's rights.

IS GUARDIANSHIP THE ONLY MEANS OF HELPING AN INCAPACITATED PERSON? No. Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs whenever possible. If a person creates an advance health care directive and a durable power of attorney or revocable living trust while competent, he or she may not require a guardian in the event of incapacity.