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Probate Law

How Guardians are Appointed and Wards Protected- a Lawyer’s Explanation

Appointment of guardianship proceedings are among the most typical forms of legal proceedings which people and families will confront in Florida. Though such proceedings are perfectly common, the potential dangers posed by improperly managed guardianship or probate process are quite high, since an improperly managed probate or guardianship can even have long-lasting financial implications for the people involved. There are several ways through which a suitable person may be appointed as a guardian ad litem for a child or other relatives. There is also the possibility of appointing an individual without the aid of any lawyer.

 

There are three standard methods of appointing a personal representative or guardian for a minor: through court orders, by the request of the individual concerned, or by the appointment of a special master. If the probate court declines to grant guardianship or if the application for guardianship is denied, then the individual may appoint an individual (known as a personal representative or executor) to act in his or her behalf. In some instances, a person may also be authorized to act on the ward’s behalf as a representative. An executor is not required to take part in the process of personally appointing the ward, and there is no need to appoint a lawyer who is expert in probate and guardianship law for this purpose.

 

The main function of the personal representative or the executor is to manage the estate and assets of the decedent. Generally, the appointment of a personal representative starts when the court decides that a probate court has jurisdiction over the decedent’s estates. If probate was allowed to be involved, then the executor would also have been appointed. If the executor does not appear at all or does not appear properly, then legal action may be taken against the estate. There are many requirements that must be met before the probate court can decide that the decedent’s personal property and financial interests are being well administered.

 

The appointing of a personal representative involves many factors. To start with, it must be determined whether the person is incapacitated. What does this mean? An incapacitated person is one who is not competent to make decisions about his or her own affairs. This might be due to mental incompetence, mental disability, or similar reasons. Once the question of incapacitation is resolved, then the court can proceed with the guardianship process.

 

Another issue that might be addressed in the probate matter is whether the decedent had any will or living will. In the case of a will, it must be established that the decedent intended to leave an estate to his or her personal representative. If there is no will, then the Probate Court will have to undertake the task of determining what will happen to the decedent’s property and financial interests once he or she is gone. For that reason, it is common for the personal representative to request a known lawyer expert in probate lawthat the probate court to appoint someone to act as a legal representative of the decedent. Although appointing a lawyer may be seen as a step toward complexity, it is actually a helpful step in providing the necessary guidance to ensure that the process runs smoothly.

 

Having determined that the decedent is incapacitated, a court will then have to determine what will happen to the probate estate. At this point, it is very common for a personal representative or the personal executor to be appointed. He or she will then take over the responsibilities left by the deceased, including paying any outstanding debts. He or she will also ensure that the final wishes of the decedent are respected, including making sure that his or her debts do not go into default. As with any process through probate, it is extremely important to hire a legal representative who has extensive experience dealing with Florida probate matters.