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Emergency Guardianship in Florida

Sometimes a person no longer possesses the physical or mental capacity to make decisions on their own. The incapacitated person may require a guardian’s help. Unfortunately, the temporary guardianship process may take two to three months. However, emergency situations require a faster response. Florida Statute 744.3031 states that an emergency guardian may be appointed if an individual’s health or welfare is in imminent danger.

The court may also appoint an emergency temporary guardian if an individual’s property is at risk of being stolen, embezzled, or lost. So, if you know someone in this situation, an experienced probate attorney can guide you through the process and protect the rights of the incapacitated person.

When Would a Person Require Emergency Guardianship?

Blank PDF example of a Florida Petition to Determine Incapacity for guardianshipEmergency guardianship is often used after a sudden, unexpected event. Here are some examples:

  1. Mental health crisis: When a beloved family member experiences a mental health crisis that renders them a threat to themselves or others, emergency guardianship may be required. During the crisis, the affected person may be hospitalized and unable to take care of bills. Also, the family may find out there are other legal issues to deal with due to the ill person’s declining health. Most importantly, the family wants to ensure the patient receives appropriate healthcare.
  2. Sudden illness or injury: Any accident, or health event that leaves a person unconscious, or in a coma may require emergency guardianship. Sometimes estate planning documents may cover these situations. However, it remains wise to discuss the matter with an attorney to ensure assets are protected and proper healthcare is administered.
  3. Incarceration: When a person is incarcerated an emergency guardian may be appointed to take care of their financial matters.
  4. Financial exploitation: Family members may discover that a loved one is being robbed by neighbors or strangers. The elderly, or mentally disabled are often victims of this type of crime. When you discover someone stealing property, transferring titles, or robbing your beloved family member, seek an immediate guardianship. Once again, contact an attorney right away.
  5. Substance abuse: This is a tricky category and requires an attorney’s help. Generally speaking, this applies to folks addicted to alcohol or drugs. The addiction must impair their ability to function and manage their affairs. Usually, the family doesn’t realize the seriousness of the situation until an unexpected event happens.

How to Obtain Emergency Guardianship

Emergency guardianship may be obtained to protect a person due to physical or mental incapacity. The first step would be to contact an experienced attorney. Then, the process begins:

  • First, a petition is filed with the court.
  • Second, a hearing is scheduled within three days. Your attorney tells you what to bring to the hearing.
  • Third, if the court agrees that a temporary guardian is necessary, one will be appointed that day. The temporary guardian may now make decisions regarding healthcare, finances, and living arrangements.
  • This temporary guardianship lasts 90 days. After 90 days, the court decides whether to extend the guardianship for another 90 days, or, make it permanent.

Does Guardianship Override Power of Attorney in Florida?

Power of Attorney and Guardianship are both legal documents. However, they have differences. First of all, Power of Attorney is granted by a mentally sound person and given to another person to use if necessary. Guardianship is granted by the courts when someone is incapacitated or unable to take care of themselves. Generally speaking, guardianship provides more expansive powers and may override a power of attorney. Sometimes, guardianship becomes unnecessary due to well drafted estate documents. Due to the complicated nature of these documents, consult an experienced attorney for advice regarding either document.

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