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FLORIDA GUARDIANSHIP EXAM
Professional Guardian Responsibility - ANSWERS-Assisting the ward in exercising Self-Determination to the fullest extent possible Professional Guardian Duties - ANSWERS-(1) Arrange appropriate medical care and treatment (2) Arrange support and care (3) Ensure ward is as independent as possible (4) Protect ward from abuse or neglect Guardianship Termination - ANSWERS-Guardian must petition for termination of guardianship if:
- Ward regains capacity
- There is a least restrictive alternative
- Ward expresses desire to challenge necessity of guardianship
- Ward dies
- Guardianship is no longer beneficial
- Ward cannot be found after diligent search Natural Guardian of Minor - ANSWERS-Have guardian of the person power, not guardian of the property power
- Automatic duty of support until minor is 18 *Court can extend this is minor has a disability
Alternatives to Guardian of a Minor - ANSWERS-Emancipation Custodianship Temporary or Concurrent Custody Health Care Surrogate Representative Payee Emancipation - ANSWERS-Allows minor to become "an adult" Must be at least 16 to acquire nonage Temporary or Concurrent Custody - ANSWERS-Minor is living with one who is not the natural guardian
- MUST show they can do ALL necessary things to care for a minor When Guardian of a Minor is required - ANSWERS-If a GAL issue arises If natural guardian, dies, is disabled, or incarcerated Guardian of a Minor Responsibilities - ANSWERS-(Not a GAL)
- Guardian follows powers and duties of plenary guardian
- A different guardian report must be filed
- Guardian cannot use minor's assets to support the minor Minor guardian basically becomes the "parent" of the minor and is expected to help minor with: Education, finances, insurance, taxes, driver's license, etc.
Restoration of Capacity Hearing - ANSWERS-Court is required to give priority "to any suggestion of capacity" and must "advance the cause on its calendar" Role of the Attorney--Mental Disability - ANSWERS-Maintain, as reasonably possible, a normal attorney-client relationship
- Allowed to act as de facto guardian and petition for guardianship if reasonably necessary Intervention as an Attorney - ANSWERS-ONLY warranted when "client cannot adequately act in client's own best interest"
- Should always look for least restrictive alternative Attorney for an AIP - ANSWERS-A lawyer appointed in guardianship proceedings represented the expressed wishes and not necessarily the "best interests" of a prospective ward
- Cannot represent ward if represented a petitioner in incapacity proceedings
- May not serve as guardian of the AIP or as counsel for the guardian appointed Shen v. Parkes - ANSWERS-Examining committee report should not be the only element relied on by trial court in making a decision Administering Guardianship as an Attorney - ANSWERS-Every guardian must be represented by an attorney
- ONLY exception applies to guardians of persons with developmental disabilities Attorney represented the guardian
- Unless 3rd-party beneficiary of attorney's services, Saadeh v. Conners Conflicts as an Attorney - ANSWERS-ANY conflict, look to:
- Withdraw
- Disclose Material facts
- Petition for court monitor and/or GAL for ward Undue Influence - ANSWERS-Undue influence in guardianship proceedings tend to appear when a guardian or another close to the ward uses their status to influence the ward to do something that is seemingly outside of their best interest 7 Carpenter Factors for Undue Influence - ANSWERS-(1) Presence of beneficiary at execution of the will (2) Presence on occasions when testator expressed desire to make a will (3) Recommendation by beneficiary for an attorney to make the will (4) Knowledge of contents of will by beneficiary prior to execution (5) Giving instructions on preparation of will by beneficiary to attorney drawing will (6) Securing witnesses to will by beneficiary (7) Safekeeping of the will by beneficiary subsequent to execution
(1) the institution has trust powers (2) Has a place of business in Florida (3) Is authorized to conduct trust business in Florida DPOA Termination - ANSWERS-- Principal Dies
- Principal becomes incapacitates, if not a DPOA
- principal revokes POA
- POA provides when it terminates
- Purpose of POA is accomplished
- Authority terminates with no successor DPOA Authority Termination - ANSWERS-Authority remains until:
- Agent dies, becomes incapacitated, resigns, or removed by court Guardian Advocates - ANSWERS-Court should appoint a. GA for a person with a developmental disability if the person "lacks the decision-making ability to do some, but not all, of the decision- making tasks necessary to care for their person or property" Guardian Advocates Requirements - ANSWERS-Court should appoint GA as least restrictive means
- Court MUST consider any existing advance directives or DPOA made by the person with a disability
- Specifically, determine if such documents will "sufficiently address the needs of the person with a developmental disability" or GA will not be appointed
Florida Uniform Transfers to Minor's Act (FUTMA) - ANSWERS- Applies to transfers made under the Act, if the transferor, a minor, or custodian, is a Florida Resident, or the property is located in Florida
- Person designating a minor as recipient of property transferable upon occurrence of future event may revocably nominate a custodian to receive the property for the minor FUTMA Avenues - ANSWERS-Will, Trust, Deed, Instrument exercising power of appointment, or Writing designating a beneficiary Custodianship - ANSWERS-Gives custodian power to borrow, contract, & invest "in the best interest of the minor."
- Lasts until transfer is made
- "(Name) as custodian of (Minor's Name) under FUTMA" FUTMA Transfers - ANSWERS-May only be made (outside a gift or will) if:
- fiduciary considers the transfer to be in the best interest of the minor
- Transfer is not prohibited by and is consistent with provisions of governing instrument
- Transfer is authorized by the court if it exceeds $10, FUTMA Termination - ANSWERS-Must state, property transfers when:
- Minor turns 25
Determination of Incapacity - ANSWERS-Must include:
- Scope of incapacity
- Exact Areas in which person lacks capacity to make informed decisions about care/treatment or their physical/mental health or safety
- Specific legal disabilities
- Specific rights AIP is incapable of exercising Petition to Appoint ETG - ANSWERS-Apply for appointment as ETG
- Hearing to determine if emergency
- Order appointing ETG for limited time and purpose Petition to Appoint Guardian - ANSWERS-Apply for appointment as guardian
- Criminal & Financial background checks
- Determine if less restrictive alternatives
- Hearing
- Order appointing guardian Guardianships - ANSWERS-Guardian of the Person Guardian of the Property Standby Guardian Preened Guardian Plenary Guardian Voluntary Guardian
Guardian of the Property - ANSWERS-Duty, upon appointment, to take immediate steps to locate and marshal all assets of the ward and ensure they are properly protected Guardian of the Property Duties - ANSWERS-Create guardian accounts over all cash and bank accounts
- After location of assets, bring all found assets into control of the guardian
- Immediately ascertain status of real property insurance and loans
- Confirm title evidence of real property
- Personal property be protected in best interest of ward's future 3 Specific Duties of Property Guardian - ANSWERS-(1) Protect and preserve the property with accurate records of administration (2) Perform duties required by law (3) At termination, deliver property to lawfully entitled person Guardian of the Property Powers - ANSWERS-Retaining and receiving assets
- Insuring estates from damages
- Paying taxes Guardian of the Person - ANSWERS-Primary responsibility is to properly exercise the rights of the ward that have been delegated to the guardian in "best interest" of the ward
A hearing to determine appointment is held
- If approved, serve as "shadow" to guardian until, and if, needed to replace the guardian Preened Guardian - ANSWERS-An adult or the parents of an unemancipated minor may designate the person who should serve as a guardian before a guardian is needed Voluntary Guardian - ANSWERS-Guardian takes "possession" of the care, custody, and management of ward's estate by reason of age or physical infirmity "Voluntary guardianships require a court to affirmatively find the ward mentally competent." Whiting v. Whiting
- No determination of incapacity required, only certification by licensed physician Follows the duties/powers of a plenary guardian Guardian Ad Litem - ANSWERS-A court must appoint a GAL for a minor or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of a minor or incompetent person Plenary Guardian - ANSWERS-A person "appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks capacity to perform all of the tasks necessary to care for their person or property" "The guardian can make decisions about both the ward's estate and the ward's person"
(A full guardian) Mandatory Appointment of a GAL - ANSWERS-For minor settlements with net proceeds greater than $15,
- For minor/incompetent v. parent/guardian
- For guardian v. ward Petition for Appointment of GAL - ANSWERS-Must include:
- Initials, residence, and birth year of prospective ward
- Name and residence of any guardian appointed to prospective ward
- Name and residence of any living natural guardian having legal custody of prospective ward
- Description of interest in proceedings of prospective ward
- Facts showing necessity for appointment of GAL GAL Duty - ANSWERS-To act as "guardian" with best interest of ward in mind Professional Guardian - ANSWERS-Any guardian who has at any time rendered services to 3 or more wards as their guardian Necessities to become Professional Guardian - ANSWERS-Must complete 40hrs of instruction/training within 1yr of becoming a professional guardian
- Blanket bond requirement has been established
