Guardianship After An Injury

How To Establish A Guardianship In Florida For Someone Who Has Suffered An Incapacitating Injury

After a loved one has suffered an injury (due to something like a car accident or medical malpractice) that causes them to become incapacitated, the family is often unable to do a number of things for them, including make medical decisions, unless a legal guardianship is established.  Unless this is done by the family, the state will appoint a professional guardian to oversee the incapacitated person’s affairs.

Incapacity And Guardianship

In Florida, we use the term “incapacity” as opposed to “incompetent” to describe someone who cannot make decisions on their own.  When a person suffers a traumatic brain injury or is sedated for any significant amount of time in a hospital, Florida law allows the family to file a petition to determine incapacity under Chapter 744, Florida Statutes.  This process allows a third person to take control of the person’s medical decisions as well as financial decisions.

You may need a guardianship to retain an attorney as well as to gain the legal authority needed to file a lawsuit and settle an insurance claim for a loved one who cannot do these things on their own after an injury.  A petition to determine incapacity is always filed with an application to become guardian.  If you need to go through this process, you should discuss among the family who is most qualified to become guardian and agree on who should be guardian if at all possible before beginning the process.

What Rights Does A Guardianship Take Away?

There is a committee of three professionals (it can include one layperson) who make a recommendation to the court based on their training and experience as to whether the injured person lacks capacity to make decisions on their own.  They may recommend that all of the following rights be taken away from the injured person or just some.  Those rights are:

  • right to marry
  • right to vote
  • right to enter into binding contracts
  • right to manage or dispose of property
  • right to have a driver license
  • right to determine her or his residence
  • right to consent to medical treatment
  • right to make decisions affecting her or his social environment

An attorney is also appointed for the incapacitated person who is supposed to consider the guardianship process as “adversarial.”  The reason for this is because a person is presumed to have capacity unless there is adequate evidence that a person lacks capacity and that a person should not have more rights taken away than is absolutely necessary.

Apply To Become Guardian

After a judge determines that someone lacks legal capacity, a guardian is appointed to assume control over the rights that have been taken away.  In Florida, any person over the age of 18 may be appointed guardian, however, the courts give preference to a person who under section 744.312, Fla. Stat.:

  • Is related by blood or marriage to the ward;
  • Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
  • Has the capacity to manage the financial resources involved; or
  • Has the ability to meet the requirements of the law and the unique needs of the individual case

Some jurisdictions will require you to post a bond while others will not unless there are assets.  A guardian will also be required to make an inventory of all the ward’s assets (including a personal injury or medical malpractice case that is yet to be settled) and must make periodic reports to the judge for the person’s plan of medical care and overall general state of affairs.

Some jurisdictions, such as Hillsborough County and Pasco County, have specific local rules that must be followed and unique forms that must be used.  Polk County enacted local guardianship procedures in 2016.  All of the powers and duties of a guardian are listed in section 744.361, Fla. Stat.

Role Of Personal Injury Attorney

At Russo Law, we will file a guardianship in the appropriate jurisdiction for a client who has been involved in a serious car accident or was injured in an incident of medical malpractice.  This allows you to settle an insurance claim or to file a lawsuit for your loved one.  It also ensures that you, as the guardian, can make the appropriate medical decisions for your loved one.

With a professional guardian, you may not be satisfied with the decisions that have been made, particularly with respect to treatment and payment for medical expenses.  It is important for you to know that the guardian is not personally responsible to pay for the medical bills.

Call A Lakeland Personal Injury Attorney For Help On Your Case

If you have questions about whether you need to establish a guardianship after someone you know has suffered a serious injury, please contact a Lakeland personal injury attorney to discuss what should be done for free.  We those located in Polk County including Lakeland, Winter Haven, Bartow, and Haines City, Florida with personal injury cases.

January 21, 2017