Watching a parent or another loved one struggle with dementia can be extremely difficult. At some point, you may be asking questions that have nothing to do with a medical diagnosis and everything to do with protecting the person’s everyday life.
Who can manage the bills? Who can make important decisions? What happens if your loved one can no longer understand financial or medical issues?
A Florida guardianship may be one option when a person with dementia can no longer make certain decisions for themselves.
But guardianship is not automatic because someone has been diagnosed with dementia. There are court processes to determine whether the person is incapacitated and what assistance may be needed.
Does Dementia Mean Someone Needs a Guardian?
A dementia diagnosis does not automatically establish legal incapacity. Florida courts will look at the person’s ability to exercise their legal rights and make decisions.
In the state, the law requires incapacity to be established by clear and convincing evidence. The court will look at the person’s needs and abilities. It will only consider the rights the person is unable to exercise, according to Florida Statutes § 744.331.
Florida’s guardianship system uses the least restrictive appropriate option and preserves the person’s ability to make decisions to the fullest extent possible.
How Does the Guardianship Process Begin?
However, if guardianship is needed, the case begins with a petition to determine incapacity. Under Florida Statutes § 744.3201, an adult may file a petition asking the court to determine whether another person is incapacitated.
This petition must provide specific information, including the basis for the belief that the person is incapacitated and the rights the petitioner believes the person is unable to exercise. Along with that, it must also identify known next of kin.
What Happens After the Petition Is Filed?
The alleged incapacitated person is entitled to an attorney. The court will follow a process for evaluating the person’s capacity. In these cases, the court appoints an examining committee to evaluate the alleged incapacitated person and report its findings to the court.
The person may also have the opportunity to participate in the hearing. Florida law requires the individual to be present at the adjudicatory hearing. However, the person’s presence can be waived, or the court will allow a good cause for the absence under Florida Statutes § 744.331.
After that, the court considers the evidence and decides whether incapacity has been established.
What Happens If the Court Finds Incapacity?
If the court determines that the person is incapacitated, it must identify the rights the person is unable to exercise. This does not necessarily mean the person loses every legal right.
Also, the court must consider whether an alternative to guardianship would address the person’s needs.
If the court determines that guardianship is necessary, the next question is who should serve as guardian.
The law allows the court to consider qualified family members and other appropriate individuals. This appointment order must be consistent with the person’s welfare and safety under Florida Statutes § 744.2005.
What Happens After the Guardian Is Appointed?
The guardian’s responsibilities do not end when the court issues the appointment. A guardian must comply with Florida’s guardianship requirements. Depending on the guardianship, they may be responsible for personal decisions, property and financial issues, or both.
Throughout the appointment, the court continues to oversee the guardianship. Along with that, the guardian has ongoing reporting and other legal responsibilities.
Talk to Niebla Probate Firm About Guardianship for a Loved One with Dementia
Dealing with dementia is difficult enough without trying to deal with an unfamiliar legal system at the same time. If you’re concerned about a parent’s ability to manage their affairs, Florida’s guardianship process might be an option in your situation.
If you’re unsure whether guardianship is necessary or don’t know where to begin, contact Niebla Probate Firm to discuss your situation. Reach out for a consultation today.
