Understanding Guardianship

Understanding Guardianship - Reyes law Group BLOG post by Melissa J. Ulloa, Attorney at Law
Guardianship will allow you to help those who can no longer help themselves
Mental illnesses, such as Alzheimer’s disease, devastatingly impair an individual’s ability to take care of themselves, both physically and financially.  In most cases, these individuals have family members or friends who are willing take responsibility and make crucial decisions regarding their well-being.  However, these family members and friends have no legal authority to make crucial decisions unless the power is given to them by either a Power of Attorney or a Guardianship action with the Courts.
There is a prevailing notion that all that is needed to invoke this authority is a Power of Attorney. In some cases that is true.  A Power of Attorney is a legal document where one person delegates authority to another to act on their behalf.  However, a Power of Attorney is a proactive document, meaning the document is executed before a person becomes incapacitated and unable to care for themselves.  The delegating person has the legal competence to execute the Power of Attorney; once the person becomes incapacitated, they no longer have legal competence and cannot consent to the execution of a Power of Attorney.
So, what happens if you have a family member or friend who is mentally incapacitated and no Power of Attorney was executed prior to their illness? In these circumstances, the only recourse is to institute a Guardianship action with the Courts.  In a Guardianship action, the family member or friend is required to file a Petition to Determine Incapacity asking the Court themselves to determine the incapacity of the individual. Once the petition is filed, the Court appoints the individual an attorney and establishes an examining committee.  The appointed attorney and the examining committee will then perform an independent examination of the individual and report their findings to the Court.  If the Court reviews the findings rendered by the appointed attorney and examining committee and finds the individual is indeed incapacitated, the Court will issue declaring the individual incapacitated.
After an incapacity determination has been made, the family member or friend can file a Petition to Appoint a Guardian with the Court. This Petition is a formal request that the Court appoint a guardian to act on behalf of the individual. The Petition can request the appointment of a guardian in two respects: solely over the “person” of the individual – meaning, the guardian would only have authority to make medical and physical well-being decisions; or the Petition can also request the appointment of a guardian over the “property” of the individual – in this case, the guardian would only have the authority to make decisions regarding the individual’s finances, property, assets, etc.   That said, more commonly, the Petition can request appointment of a guardian over both the “person and property” of an individual.
If you have a family member or friend who is currently suffering from a mental illness, anything from Alzheimer’s to Down Syndrome, and is unable to care for themselves, we suggest you seek legal counsel to initiate Guardianship proceedings to ensure your loved ones are cared for.
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Melissa J. Ulloa is an Associate at Reyes Law Group focusing primarily on mortgage foreclosure defense and civil litigation.  Carlos J. Reyes is the Principal of the Reyes Law Group.  He has been a member of the Florida Bar since 1988.  Carlos has been awarded a rating of “AV Preeminent” which is the highest possible rating in both legal ability and ethical standards by Martindale-Hubbell – a well-recognized legal resource.  The balance of the RLG Legal Team includes attorney and the RLG Legal Support Team.  RLG Legal Team is a knowledgeable, dedicated, and dynamic team that focuses on handling your legal needs.

We also assist clients in the areas of: Civil LitigationReal Estate LitigationResidential Purchase & SalesCommercial Acquisitions & SalesResidential Landlord-Tenant LitigationCommercial Landlord-Tenant LitigationShort Sales NegotiationsLoan ModificationsCriminal DefenseCivil Rights ClaimsFamily LawCorporate Work, and Labor & Employment Law.

Call us for a FREE consultation at (954) 369-1993  Se Habla Español.

Visit our firm website ReyesLegal.com and review our credentials.

We are located at 150 South Pine Island Road #210, Plantation, FL 33324


The Reyes Law Group BLOG is intended to provide information to firm clients, friends and potential clients about various legal related topics. Nothing in this BLOG should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this BLOG without seeking the advice of legal counsel. *Past results are no guarantee of future results.

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Reyes Law Group represents clients in a multi-disciplinary legal practice involving real estate transactions and litigation with a “footprint” that covers the State of Florida. Over the firm’s first 10 years, Reyes Law Group has closed over $100M in commercial closings, representing buyers and sellers in contract negotiations, due diligence, and the related title review and policy issuance related to closings. In litigation, the firm has commercial litigation experience focused on prosecuting or defending claims such as breach of contracts, partition actions, trade secret violations, and breach of non-competes. However, our firm’s MAIN FOCUS is assisting asset and loan portfolio managers, investors and private lenders with a “ 4-PILLAR APPROACH” to the legal challenges they face with non-performing assets: 1) LOAN WORKOUTS; 2) COMMERCIAL FORECLOSURES (across the State of Florida); 3) COMMERCIAL EVICTIONS; and 4) REO COMMERCIAL CLOSINGS.30+ years’ legal experience means - WE CAN HELP!

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