What is the best fit for a child in your family?
There are numerous similarities between Temporary Custody by Extended Family Member and Guardianship, but there are differences, as well. Understanding the differences can be critical in deciding which one fits your situation the best.
What is Temporary Custody by Extended Family Member?
What is Incapacity?
Incapacity is when a person is either under the age of 18 or is unable to provide food, clothing, shelter, or unable to manage their business and financial affairs. Guardianships are frequently created when difficulties present themselves in an individual’s life and his or her ability to deal with life’s affairs is hampered or non-existent. A family member, or in some cases, a qualified individual can petition the court system to appoint someone to manage the incapacitated individual’s matters.
What is a Durable Power of Attorney?
Have you been taken advantage of by someone in a purchase or contract? This happens often when someone purchases something over the internet. Florida has a very large population of elderly individuals. Because many elderly persons are vulnerable and subject to exploitation some of Florida’s laws are more stringent than in other states. While elderly persons are the most preyed upon, anyone can be taken advantage of in a given situation and their money taken. If this has happened to you, you may have remedies under Florida’s Civil Theft Statute. Contact your local Jacksonville elder law attorney to find out if you have a case.
Florida’s Civil Theft statute can be found at §772.11 titled Civil remedy for theft or exploitation. This statute provides that any person who can prove by clear and convincing evidence that he/she has been injured in any fashion by reason of any violation of Florida’s criminal statutes §812.012-812.037 or §825.103(1) has a cause of action for threefold (or 3 times) the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. The criminal statute that covers theft is §812.014 and that generally is the statute you look at to determine if you have a civil theft case.
There are procedures that must be followed before making a civil theft claim. You must send a demand letter to the potential defendant and give them 30 days to make payment on the treble damages you will be alleged in your complaint. If that person complies and makes the payment, a written release from civil liability for the specific act of theft or exploitation must be given to the defendant. You should consult your Jacksonville family law attorney for assistance if you believe you are the victim of civil theft.
Florida Law provides that any person who is 18 years or older, except a person excluded by certain crimes can become a guardian of a child. The statute provides for other exceptions to becoming a guardian of a minor such as incapacity, illness, or if the court finds one to be otherwise “unsuitable” to become a guardian of a child.
An Atlantic Beach Guardianship Lawyer will meet with you at the beach, provide you with a questionnaire, and make a determination as to your suitability to become a guardian. A petition for appointment as guardian is filed with the Duval County Probate Clerk, and the case is opened. The natural parents must either give their consent to the guardianship or be found to have neglected or abandoned their child.
There are several documents that must be filed with the court before a hearing will be set in front of the probate judge. The person seeking to be appointed for the court must appear at the hearing. The minor does not have to attend the hearing, however, the unique circumstances of each case will dictate.
Who is qualified to be a guardian over a Florida resident?
Any interested person who is a resident of Florida may be considered to act as a guardian for another person who lives in Florida, if they meet certain criteria. A guardian must be over the age of 18 and have no legal disability.
A nonresident may serve as guardian of a resident ward if he or she is: a descendant (child, grandchild, great granchild) of the ward; an adopted child or adoptive parent of the ward, or a spouse, sibling, aunt or uncle, niece or nephew of the ward, or a spouse of a person qualified under this section.
At times in life, people experience highs and people experience lows. Bouts of depression can bring on drinking or drug use, or a sudden illness or accident can occur. When this happens there is the potential that someone will become incapacitated and hospitalized without the ability to make important life decisions.
A Florida Durable Power of Attorney gives the family a way to help a potentially disabled person in handling his or her legal, business and property affairs. The durable power of attorney might effectively sidestep the time and expense it could cost to establish a guardianship. One should also consider designating a Florida Health Care Surrogate so that he or she can make medical decisions in the event of incapacitation. Consulting with a Jacksonville Guardianship Lawyer with an office in Atlantic Beach, will give you the advice you need about the legal documents available to one who currently has the legal capacity to sign a legal document giving future authority to another.
A situation I recently heard of was of a young man whose older brother had just been divorced. The older brother fell into such a depression that his drug use increased two-fold, and he even told his family that it would kill him. Being a savvy younger brother and knowing his older brother was in the middle of a divorce, the younger brother started talking to the older brother about a durable power of attorney in case he ended up in the hospital and unable to handle his financial affairs in the divorce. Sure enough, the older brother ended up in the hospital, unable to express his desires without the help of his younger brother as his agent.
As an attorney in an Orange Park Guardianship Law Firm, I often receive calls from parents of minor children who have received an inheritance, proceeds of a lawsuit, or insurance policy. Florida Guardianship law provides that a guardianship is required if the monetary amount in question exceeds $15,000 dollars.
Parents in Orange Park or around often question why a court proceeding is necessary for them to get access to their children’s money. In most instances, a bank, insurance company or other financial institution will not release funds to you until you have the necessary court order demonstrating your legal authority to take control of the money.
To become the guardian of a minor, (even natural parents) you need to consult with a Jacksonville Guardianship Lawyer mandated by Florida law to protect and serve the best interest of the minor. Any money exceeding $15,000 is considered significant, and the court requires that the money be placed in a restricted financial account.
According to the Centers for Disease Control and Prevention one in every six American children now has a developmental disability, which is a 15% increase since 1997.
The Los Angeles Times further reports that the increase is due to the rise in the prevalence of attention deficit hyperactivity disorder (ADHD), and is based on reports by parents during a phone survey. But because ADHD has become a catchall phrase for a variety of behavioral problems in schools and elsewhere, it is not clear whether the increase represents a real upsurge in such developmental delays or simply parental and physician attribution of old behaviors to a disorder that might be treated with drugs.
Developmentally disabled Floridians living in Jacksonville and the surrounding area, suffer from retardation, cerebral palsy, autism, spina bifida and Prader-Willi Syndrome. To qualify under the Florida Statutes as an individual with a developmental disorder, the syndrome or disorder must manifest before the age of 18. The disability must further constitute a substantial handicap that can reasonable be expected to continue indefinitely.
Say it isn’t so. A recent story in the American Bar Association Journal reports that an attorney in practice for over 30 years has been disbarred for helping a Ward “Will” 5 million to the attorney’s wife.
A Florida Guardian is appointed by the court to make personal and financial decisions for a minor child or an adult who is either physically or mentally incapacitated. The subject of the guardianship is called a “ward”.
In many instances a family member, or close personal friend petitions the court for a guardian to be appointed. However, there are times when an incapacitated person has no family or friend willing or able to act as guardian. In this case, either an attorney or a professional guardian will be chosen. In either instance, a Ward by virtue of being either incapacitated or a minor, is often easy prey for an unsavory guardian.
Florida law allows for a non-legal parent to become the legal Guardian of a Florida Minor should the natural or adoptive parent become incapacitated or die. One way for parents to designate who they want as guardian is name a guardian in their Florida Will. The court shall consider any person designated as guardian in any will in which the ward is designated as a beneficiary. Florida Statute 744.312(3)(c)
It is however, better practice to follow Florida Guardianship Law in having a Preneed Guardian Designation prepared. Both parents, if living, or the surviving parent, may nominate a preneed guardian of the minor by making a written declaration. In that way, when the surviving parent becomes incapacitated or dies his or her wishes as to who should be the guardian of their child has been memorialized in writing. It is important to consult with an Orange Park Guardian Lawyer to make sure that the preneed guardian designation has been executed pursuant to Florida Law and is therefore, valid. The Designation must also be filed with the proper clerk of the court.
Upon a proceeding to determine the last surviving parent incapacitated, or upon the death of the last surviving parent, the production of a preneed declaration constitutes a rebuttable presumption that the designated preneed guardian is entitled to become the guardian. However, the court is not bound by the preneed guardian designation if the guardian is found to be “unqualified” to serve or if the court believes that such appointment of the preneed guardian would be contrary to the minor’s best interest.
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