Concepts in Florida’s Guardianship Law

Florida law provides for the appointment of a guardian for a minor in circumstances such as where the parents die, are unable to care for a child, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount parents are allowed by statute to receive on behalf of their child.

Adult guardianship is the process by which the court finds an individual’s ability to make decisions is impaired, therefore the court gives the right to make decisions to another person or entity. Guardianship is only warranted when no less restrictive alternatives, such as a durable power of attorney, a trust, a health care surrogate or proxy, or another form of pre-need directive, are found by the court to be appropriate and available. Legislative intent establishes that the least restrictive form of guardianship is desirable, if it is in the best interest of the ward.

In Florida, guardianship is mostly used for elderly adults who have become incapacitated as a result of physical illness, cognitive impairment, mental disability, trauma, or other conditions. At Morgan Legal Group, P.C., our attorneys can assist with establishing a guardianship who is unable to manage their lives. We have years of experience in helping individuals and families who are facing the decline of a loved one’s physical or mental health.

Our attorneys understand the necessity of a guardianship for these individuals and have the expertise needed to ensure that the right type of guardianship is established. As such a practiced attorney is required to help navigate the legal aspects of this process and to secure the best solution for the incapacitated person and their family. If your family member or loved one is in need of guardianship for their personal or financial affairs, reach out to us at Morgan Legal Group, P.C..

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Questions And Answers

Laws pertaining to a last will and testament can differ across each state. In New York, a will must abide by certain legal formalities in order to be considered a legitimate last will and testament. The document must be dated and signed by the testator (the maker of the will) in the presence of two witnesses. These witnesses should not be named beneficiaries in the will nor is it necessary for them to read the contents of the will. In addition, in New York a will can be used to appoint an executor who will be responsible for ensuring that the instructions and terms laid out in the will are carried out after the testator’s death. A testator may choose to modify or revoke their will at any time.
A will contest occurs when an interested party refutes the content or the validity of a will. In New York, only those interested parties who would be affected by a potential financial gain (or loss) through the probate of a will have the right to contest it. These include the decedent’s beneficiaries and heirs-at-law. However, having the standing required to challenge the probate of the will is only a small part of a will contest. Beneficiaries or heirs-at-law must prove that their challenge is warranted based on certain legal grounds. Under New York law, these grounds are listed as undue execution, revocation, incapacitation, fraud, or undue influence. It should also be noted that in cases where an individual has no financial interest, they may only object to the will’s designated executor. They may not challenge any other terms of the will.
Many people believe that drafting a last will and testament will safeguard their estate from probate proceedings. However, this is not the case. A will must be presented to New York’s Surrogate Court in order to be authenticated and approved for use in the formal transfer and distribution of a decedent’s assets. Probate provides a means of legally carrying out the provisions of a will in order to ensure that an estate is distributed according to the terms set down by the decedent in that document.
Enrolling in a pooled income trust in New York is a strategy that can be used to assist individuals who are looking to meet Medicaid’s income or asset threshold in order to qualify for the program. A pooled income trust essentially allows prospective Medicaid applicants to transfer excess assets into the trust so that they can be eligible for the program. In addition, this type of trust allows for individuals to access the funds in the trust in order to finance expenses not covered by Medicaid without the risk of being disqualified. In New York, pooled income trusts are operated by several non-profit organizations. As such, the enrollment process, minimum deposits, and fees for the trust can vary. This type of trust is intended for the elderly and individuals living with a disability.
A special needs trust is a financial tool used in estate planning that helps individuals with disabilities to finance certain expenses and maintain a quality standard of living. This type of trust is specifically designed to protect funds and assets for a person with a disability and retain their eligibility for government benefits. The funds and assets placed within a special needs trust are not counted towards any income eligibility limit. A trustee will be in charge of managing the funds of the trust for the beneficiary, which can be helpful for children who are minors or adults who are unable to manage their finances. It is important to note that a special needs trust is unique in that its funds cannot be used to pay for basic necessities such as housing, utilities, groceries or other items that are covered by public benefits.
A Medicaid Asset Protection Trust (MAPT) is a planning strategy that is implemented for the purpose of qualifying for Medicaid. As the name suggests, a MAPT also has the added benefit of safeguarding an applicant’s assets. This type of trust is similar to an irrevocable trust in that the funds and assets that are transferred into it are no longer considered to be owned by the applicant. As such, they cannot be counted towards Medicaid’s eligibility limit. However, the funds and assets in the trust can no longer be transferred back to the applicant as they now belong to the trust’s beneficiaries.