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How Do Guardianships In Non-Child Custody Cases Work?

Many have heard of guardianship in the child custody context: A guardian ad litem represents the best interests of a child involved in a child custody dispute. Some have likened them to attorneys representing these children.

However, guardians are also established to represent and protect individuals who are in need of providing power of attorney to someone else, allowing them to make major medical and other decisions on their behalf. This can be an elderly family member, or an underaged or incompetent child or adult, and these circumstances can be due to mental illness, an injury, or another condition. However, it is crucial that, if this needs to be established, it is established properly, as durable power of attorney, and the right person is chosen.

Types & Process

There are several types of guardians; this list includes:

  • Guardian of an individual: concerning care, custody, and control of the individual;
  • Guardian for a minor: for anyone under 18 years of age if they do not have living parents or their parents’ rights have been terminated by the courts; this individual has the authority to make decisions concerning that minor’s property and care;
  • General guardian: has the authority to control the ward’s property and care; and
  • Guardian of an estate: regarding money, property, business affairs.

With these types of guardianships, the county court must be petitioned in order for someone to be appointed as a guardian, and subsequently, a hearing is held. During the hearing, the ward has the right to be represented by an attorney or guardian ad litem throughout the hearing process (note: minors do not first have to prove incompetency to have a guardian ad litem appointed; they simply have to be under the age of 18).

Similar to child custody cases, the courts make their decisions concerning guardianship in terms of what is in the best interest of the ward.

Choosing Guardianships versus Having Them Appointed

Guardianships can be crucial, especially for some elderly individuals who, with no immediate family and without having designated someone to make decisions in case of incapacitation, will often be advised to petition the court for a guardian.

However, who is appointed as the guardian (and how) can be absolutely crucial. There have been reports of elderly abuse involved in some guardianships. For example, if you do not designate a specific guardian, a lawyer appointed by the county can be appointed, and there have been instances where those individuals have decided that the best place for someone who has had a guardian appointed is a group home for seriously mentally ill adults, even when they are not mentally ill.

What sometimes happens next is the unthinkable: upon leaving, these individuals have sometimes lost their homes, all because courts can grant permission for guardians to sell the ward’s home and its contents. This can, in the worst cases, leave completely competent individuals with no legal rights, left to fight the guardianship in court.

Contact Sandra Bonfiglio, P.A. for Assistance

For any and all family law matters—including establishing guardianships for a family member—contact the law office of Sandra Bonfiglio, P.A. for assistance. We serve clients in and around Fort Lauderdale, Boca Raton, Broward County, and in surrounding areas.

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