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Legal Guardianship Law in Florida


Certain people are incapable of making decisions for themselves, perhaps because of age or a mental or physical disability. For that reason, Florida law allows for the appointment of legal guardians.

Legal Guardian for Elderly Nursing Home Resident

Eight residents died at a Florida nursing home when the facility’s air conditioning system failed during Hurricane Irma, and others sustained heat-related injuries. Now, a 94-year-old woman who was hospitalized because of the power outage is suing the home, alleging that the facility showed “negligence and reckless indifference” toward the elderly residents.

Rosa Cabrera, a double amputee, was told that she would not be evacuated during the storm but would be safe in the nursing home. She alleged that she didn’t know the facility lacked a generator. Cabrera’s legal guardian filed the lawsuit against the Rehabilitation Center at Hollywood Hills on her behalf.

What Is a Legal Guardian?

A legal guardian is a surrogate decisionmaker — someone who makes decisions on another person’s behalf. A court appoints the surrogate to make personal and/or financial decisions for people who can’t (or shouldn’t) make those decisions for themselves, typically a minor or adult with physical or mental disabilities.

Frequently Asked Questions about Legal Guardianship

Q: Does an adult for whom a legal guardian is appointed have to agree to the guardianship?

A: No. Florida law permits both voluntary and involuntary guardianships. A voluntary guardianship might arise when a mentally competent adult asks for help managing his or her personal finances. To establish an involuntary guardianship, the court must determine that a person is incapacitated and then transfer their legal rights to the guardian.

Q: How does the court determine incapacitation?

A: The court will hold a hearing to determine incapacitation. Before the hearing an examining committee will assess the person’s abilities and then report the findings to the court. At the hearing, anyone may testify about the person’s capacity to make decisions. That person’s rights cannot be transferred to a guardian without court approval. If the person is capable of making his or her own decisions then the court will not appoint a guardian.

Q: What legal rights may the court transfer to a guardian?

A: The court may give the guardian the right to sue on the person’s behalf, to apply for government services, to consent to medical treatment, to petition for a dissolution of marriage and to commit the person to an institution, among other rights. Additionally, there are certain rights that the court may take away from the person, including the right to vote, seek employment, marry and travel.

Contact Us Today

Contact a Miami personal injury attorney at The Pendas Law Firm today for a free consultation if you or a loved one have been injured by someone else’s negligent actions. We will help you recover the compensation that you deserve. We can also answer any questions you have about legal guardianship and incapacitation.

The Pendas Law Firm also represents clients in the Tampa, Orlando, Fort Lauderdale, West Palm Beach, Jacksonville, Fort Myers, Daytona Beach and Bradenton areas.




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