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Florida Guardianship Lawyer

Our Florida based lawyers understand the difficulty of dealing with a loved one who is unfit to care for themselves. In some cases, an Emergency Temporary Guardianship (ETG) is necessary to protect an individual at risk and ensure they get proper treatment.

A Guardianship allows a Petitioner to make health care decisions on the behalf of a Respondent. “Imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken,” must be present in order for the court to assign Guardianship to a qualified person, including a parent or physician.

Knowing the legal options you have as a concerned family member, friend, or loved one can help you make the right decision for your situation. Our Guardianship attorneys in Boca Raton are hereto guide you through legal proceedings, as well as present you with resources to help the person of concern with substance abuse disorders.

Frequently asked questions about Guardianship

An emergency temporary guardianship or an ETG is a guardianship that is granted on a temporary basis. So what that means is a parent or a guardian is going into court asking the judge to give them the authority to make medical, financial decisions over somebody who’s over 18 years of age on a temporary basis and typically that temporary basis is 90 days.

Anybody over the age of 18 years of age can seek a permanent guardianship. Typically, when you’re dealing with a young adult who has the disease of addiction or mental illness, it’s going to be the mother or the father, but it could be anybody, as long as they’re not a convicted felon and they’re over 18 years of age.

The kind of lawyer that can help a mom or dad who has a child who has addiction or mental illness is a lawyer that specializes in helping families that are in emotional crisis because of addiction or mental illness. At Drug and Alcohol Attorneys , we only do one thing: We help families that are in emotional crisis because of addiction and mental illness, so we use the Marchman Act, we use the Guardianship Statute, and we help moms and dads who come to us, really, as a last resort, and we help them get control of an out-of-control situation. We help them to put a game plan together; we help them to get their kids into treatment;

In order to file an ETG petition, a petition for emergency temporary guardianship, yes, you will need a lawyer. Unlike the Marchman Act, which is Florida’s involuntary commitment statute, which you can file on your own, probably not advisable to do that, you probably should get a lawyer who knows the Marchman to file it for you, you’re going to need a lawyer to file a petition for an emergency temporary guardianship and our drug and alcohol attorneys, we can help you to do that.

Yes. The initial period is going to be 90 days. If the petitioner can demonstrate to the court that there is a reason to extend it, then the court can grant another 90 days of guardianship. So, in total you have a period of 180 days where the petitioner has the ability to make medical and financial decisions on behalf of the ward, or the respondent as we know it.

Yes, you can hire somebody to be a guardian, and that might happen where either there’s no one to serve as the guardian for the respondent, the ward, or it might be where a family decides to petition the court to get guardianship, but they can’t decide who’s going to be the guardian, so at that point, you can appoint, or hire, retain somebody to act as the guardian to make the decisions on behalf of the ward.

A lawyer can assist you and a lawyer should assist you. In other words, you shouldn’t try and do this on your own. You should hire a lawyer who is competent and understands the dynamics of addiction and mental illness and also understands how to use the legal system so you as a parent or legal guardian can get control of an out of control situation. That means a lawyer who’s familiar with the Marchman Act which is Florida’s involuntary commitment statute for addiction and concremental illness. And also a lawyer that is familiar with the guardianship statute which allows somebody to go into court and ask the court for permission to make medical decisions, financial decisions and have access to medical records. Drug and alcohol attorneys, we only do one thing, we take care of moms and dads that are dealing with addiction and mental illness and are in crisis and we help them to formulate a plan so they move ahead. So they can get their kids into recovery and so they can move forward and have a productive life.

Yes. They have a right to have a hearing. They have a right to have counsel present or have counsel appointed for them if they cannot afford a lawyer. And they have a right to challenge the allegations that are made in the petition. They have a right to make the petition, to come in, and prove the allegations, and demonstrate to the court that the allegations are true, and that they’re not capable of making decisions for themselves related to their medical or financial decisions. If the petitioner doesn’t meet their burden of proof or doesn’t prove all the allegations with regards to the allegations that are made, then the court may either deny the petition or may deny in part and only grant it in part. In a nutshell, yes, they have a right to contest and to challenge the allegations that are made against them.

There were requirements to being a guardian. One is you have to be over 18 years of age. Number two, you cannot be a convicted felon. And number three is you have to take the eight-hour guardianship course, which can be done online. So there’s a rebuttable presumption that if you’re over 18, you’re not a convicted felon, and you’ve taken the course, that you were qualified to be a guardian.

When a child or a young adult is dealing with the diseases of addiction and mental illness, typically they are not making rational decisions that are in their best interest, and it’s not because they’re bad. These diseases take over their mind, and so they’re not capable of making decisions for themselves, they’re not capable of deciding to go into treatment, they’re not capable of making good decisions when it comes to either holding down a job or going to school, they’re not capable of deciding that they need to go to treatment. And so by getting some form of guardianship, now the parent can take control of what is basically an out of control situation. They can make a decision to put their son or their daughter into treatment. They can make the decision to get control of finances, if finances are being depleted or used to feed the addiction. It gives the petitioner typically, mom or dad, the ability to make decisions for their child that the child is no longer capable of doing.

The permanent guardianship can be used by mom or dad or whoever the petitioner is to get control of the other person, the respondent’s medical decisions, financial decisions and access to the medical records. What really is the determining factor is whether or not the addiction issue, the mental illness issue is an ongoing problem. In other words, is it going to be longer than say 90 days or 180 days, which is the typical period for an emergency temporary guardianship. If it is, it’s going to give the petitioner the ability on a long term basis to make decisions for that person who is dealing with a long term illness or disease.

There are three ways to get access to the medical records. Number one is I consent. I give you permission to look at my medical records. Number two is some type of directive. In other words, healthcare directive where I put in writing that in the event that I cannot grant you consent, perhaps I’m unconscious, I’ve been in a car accident, something of that nature, I give you written consent to have access to my medical records. Number three is a guardianship either some type of emergency temporary guardianship or some type of permanent guardianship so one of three ways you can have access to somebody’s medical records.

When somebody is suffering from the diseases of addiction and mental illness, one of the things they’re not capable of doing is making rational diseases for themselves. So the emergency temporary guardianship can be used by a parent, for instance, to get control of what is an out-of-control decision, and start making decisions for that person. It may be medical decisions. It may be financial decisions. It gives them access to medical records. But when you’re dealing with somebody who has an addiction issue or mental illness issue, they’re just not capable of making decisions for themselves that are in their best interests, and so by getting a guardianship, you enable the parent to start making the decisions, rational decisions, that are in their child’s best interests.

Typically, the ETG or the Emergency Temporary Guardianship is going to be granted for a period of 90 days. That period of 90 days can then be granted for an additional 90 days. It tracks the Marchman Act statute, which is our involuntary commitment statute for addiction and mental illness. The two can run together. You could have up to 180 days of involuntary commitment for addiction and 180 for control over medical decisions, access to medical records and control over finances.

HIPPA is our federal statute, which protects a medical records. Not everybody can look at our medical history. The guardianship statute provides for an exception to HIPPA. So when somebody has filed a petition for guardianship, the HIPPA statute or the exception to it is going to allow that person, in theory, if it’s granted, to have access to medical records. The reason for that is that the guardianship is being requested because somebody can’t make rational decisions. In order for the petitioner to now be able to make rational decisions on their behalf, HIPPA has permitted them to have access to medical records, which helps the petitioner, if they are granted guardianship, and it also helps the court to determine if these are rational decisions that are being made or not being made. So there is an exception to the HIPPA statute found in the guardianship statute.

To seek a permanent guardianship requires two things. There’s going to be a petition to determine incapacity. In other words, the court is going to appoint three experts to determine is this person, is the respondent, the person on the other end of the petition, are they incapable of making rational decisions on their behalf. If the court makes that determination based on the evidence presented by the experts, then there’s going to be … petition number two is going to get filed, and that petition is requesting the appointment of a guardian. So at that point, the court may conduct a hearing if there’s opposition, and the court’s going to determine number one, is the person who’s requesting to be the guardian of A the appropriate person to be the guardian, to make the decisions that are going to be in the best interests of the ward, and number two, how long should the guardian be? Should there be restrictions on the amount of time, or should it be an unlimited guardianship that’s going to get regularly reviewed by the court. So two petitions, one to determine incapacity, and number two, a petition to determine who is the appropriate person to be the guardian.

The ETG, the Emergency Temporary Guardianship, is only granted on a temporary basis. Initially, it can be up for 90 days, and then it can be extended for a further 90 days. So you have a total of 180 days. What makes it different from the permanent guardianship is that, at the ETG hearing, there’s not going to be any presentation of expert testimony. It’s going to be the petitioner who files a petition, proves their case, and then the judge makes a determination based on the allegations and the testimony that’s presented by the petitioner. When it comes to a permanent guardianship, the court then requires that three experts make a determination and a recommendation to the court that in fact the respondent, the ward, isn’t capable of making decisions for themselves, and that that inability to make those decisions has continued past the initial period of determination for the temporary guardianship.

As drug and alcohol attorneys we specialize in helping young adults who have addiction and mental illness issues. Typically, we use two avenues when it comes to making that person go to treatment and keeping them into treatment. Number one is the Marchman Act, which is Florida’s involuntary commitment statute for addiction and co-occurring mental illness. What that allows a mom or a dad to do it to petition the court, ask the court to send their child to treatment when that child is either not capable of making that decision, which is typical of somebody who has an addiction or mental illness issue, or they just won’t make the decision. So, it allows Mom and Dad to get a judge to make their child go to treatment. That’s number one. Number two, we use the guardianship statute, which typically has been used to help folk get control of, say, their elderly parents assets or medical decisions. As drug and alcohol attorneys, we use the guardianship statute to help moms and dads get control of what is an out of control situation. What that enable them to do it to start making medical decisions for their child, to start making financial decisions for their child, and to have access to medical records so we can see what’s really going on and then we can make the best decision. So, those are the two avenues that typically we use when it comes to using the legal system to help moms and dads to get control of their children who are dealing with addiction and mental illness.

Being appointed a guardian is a fiduciary relationship. That means that the court has made a determination that you as the guardian are trustworthy. In other words, that you’re going to make decisions that are in the ward’s best interest. You’re not going to steal from them. You’re going to make medical decisions that are in their best interest. You’re going to make financial decisions in their best interest. As a guardian, you are stepping into the shoes of the ward and making decisions that you believe are in their best interest. It’s a fiduciary relationship, meaning it’s one of trust. The quarter’s trusting you to make their decisions that are in the best interest of the ward.

Okay, so let’s start with the healthcare directive. Basically, what I’m doing is I’m giving you the ability to make medical decisions for me when I’m not able to do that. Perhaps I’m in a car accident, perhaps I get struck down by some illness, but in any of them what I’m doing is I’m saying, “Please make decisions that you think I would make when I’m not capable of making those decisions for myself.” When it comes to the power of attorney, similar type of thing, I’m giving you the ability to make decisions for me when I can’t make them. But when it comes to a power of attorney, what we’re talking about is the ability to make financial decisions for me. When it comes to a guardianship, what’s happening here is you’re now going to a court and you’re saying, “This person isn’t capable of making decisions for themselves. They’re not rational, so I should be able to do that for them.” The real difference is, in the first two instances with their healthcare directive and the power of attorney, I’ve already given you that ability to make the decisions for me. In the guardianship I haven’t given you that ability, I might even challenge your authority or your reasoning for wanting guardianship over me, but you’re asking the court to give you the ability to make decisions on my behalf. So that’s the difference.

A guardianship is a legal proceeding that allows someone to go into court and ask a judge to give them authority to make financial and medical decisions for somebody else. For instance, a parent may go into court and ask a judge to give them the ability to make decisions for their child, somebody over 18, to make decisions for that persons’ medical decisions and financial decisions if that person is determined, for some reason, to be not capable of making those decisions for themselves.

The respondent has the right to contest the allegations that are made in the petition because the petitioner is seeking to take away certain rights of the respondent, like the right to make medical decisions or the right to control their finances. They have right to a hearing, which means there’s going to be a judge who’s going to determine if the allegations are true. They get a right to confront the witnesses that are making the allegations against them. They have a right to a lawyer, somebody to represent them, basically to give them due process of law because now somebody’s asking to take control of their life. So they have a right to respond and to challenge that and to contest it.

The respondent has the right to contest the allegations that are made in the petition because the petitioner is seeking to take away certain rights of the respondent, like the right to make medical decisions or the right to control their finances. They have right to a hearing, which means there’s going to be a judge who’s going to determine if the allegations are true. They get a right to confront the witnesses that are making the allegations against them. They have a right to a lawyer, somebody to represent them, basically to give them due process of law because now somebody’s asking to take control of their life. So they have a right to respond and to challenge that and to contest it.

An emergency temporary guardianship is going to be granted after a petition has been filed and the court has conducted a hearing to determine if the allegations in the petition are true and if in fact, made a finding that the respondent, the person on the other end of the petition, is not capable of making decisions that are in their best interest. In other words, that they are basically a threat to themselves and they can’t made medical decisions and they can’t make financial decisions that are in their own best interest, that are not rational for somebody of that age and capacity.

A permanent guardianship can be sought in two instances. It might follow the granting of an emergency temporary guardianship when the reason for the initial petition is ongoing. In other words, it’s lasting past the 90 days, or it’s lasting past the 180 days that was initially granted for the emergency temporary guardianship. And obviously if we’re going for emergency temporary guardianship it’s because there’s an emergency, and we need to get in quick, and we need to get control of the situation. A permanent guardianship might be granted where there’s not such an emergency situation, but the person’s inability to make rational decisions for themselves is ongoing. For instance, somebody who suffers from mental illness, and has done for many years, that person in all likelihood isn’t going to be able to make rational decisions in a very short period of time, in other words during the period of the ETC, the emergency temporary guardianship. And therefore we’re going to ask a court to give us long term control over that person’s finances, long term control over that person’s medical decisions. And so that might be the second reason for asking for a permanent guardianship.

Pretty much anybody could be a permanent guardian. They have to be over 18 years of age. They can’t be a convicted felon. They have to take the eight-hour guardianship course which they can take online. They may be a professional. They may be a nonprofessional, meaning somebody that’s the court has determined to be a guardian or somebody that has requested to be a guardian and has been approved by the court.

In an ETG appointment, or Emergency Temporary Guardianship appointment, it’s going to be somebody over the age of 18 years of age, who’s not a convicted felon. Typically, when we’re dealing with a young adult who has an addiction issue and/or mental illness issue, it’s going to be one of the parents, the person who has direct personal knowledge, who knows that person well, and is most capable of making rational decisions that are in their child’s best interest.

The respondent is going to be the person who’s on the other end of the petition. We call that a ward or the AIP, the alleged incapacitated person. That’s the person over whom somebody else is trying to get control over. The petitioner, the person who’s going to the court is going to ask a judge to give them the ability to make financial and medical decisions over somebody else who’s the respondent in that case.

The petitioner in an ETG or emergency temporary guardianship can be anybody over 18 years of age who’s not a convicted felon who has direct personal knowledge of the other person’s alleged incapacity. In other words, they know the reasons why the person is incapable of making rational decision for themselves and they can articulate that to the court and articulate why they should be given the authority to make those decisions.

For more information or to schedule a consultation,
call (561) 419-6095 or email [email protected]