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Differences Between Guardianships and Conservatorships in Florida

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Some people use guardianships and conservatorships interchangeably, but they are different. When a person is incapacitated due to mental illness, disability, or injury, family members can petition the court for guardianship and/or conservatorship. When the judge appoints someone, they are granted certain rights on behalf of the ward, the legal term used to designate the incapacitated person.

Guardianship versus a Conservatorship: What is the Difference?

Guardianships are covered under the Florida Statutes, Chapter 744. A guardian will take over the most important decisions for an incapacitated person and look after their affairs.

Florida Statutes Chapter 747 discusses conservatorships, which apply to a family member who has gone missing. Perhaps there is reason to presume the person was killed in a war zone, or was suffering from mental illness when they disappeared, or they can just vanish without a trace. The person must be declared an absentee, which is officially defined as anyone who has gone missing and the circumstances make it look like they died, or if they have gone missing due to amnesia, mental derangement, or other mental causes. Absentees also include armed forces member who were reported missing in action, were detained in a foreign country, or have become prisoners of war.

Aside from the emotional anguish of living in limbo, there are certain legal and financial affairs that must be tended to. In Florida, you have to petition for conservatorship. To become a conservator, you must show proof that you hold an interest in the absentee’s estate if they passed away, and you must show you are dependent on support or maintenance from the absentee.

Guardians typically have more control than a conservator since the conservator is just looking after the estate, not medical and personal affairs. The courts typically use the least restrictive option and a guardianship doesn’t need to be a permanent appointment either. So, if the person is only temporarily incapacitated due to an injury, it can be revoked once the person is well.

How the Court Process Works with Florida Guardianships and Conservatorships

When you petition for guardianship, you have to show the court that the family member is truly incapacitated and cannot handle their financial or personal affairs. The court will appoint an expert committee to examine the individual to ascertain whether he or she is incapacitated. There are usually a couple physicians on the committee, who perform several tests, including a physical and mental exam.

With conservatorships, you need to prepare a petition that lists all the immediate family and next of kin. The petition also needs to have specific details on what the circumstances were when the person went missing, and list reasons why you need to be appointed conservator. This must accompany a statement that summarizes the absentee’s estate, including an estimate of its worth. The court may appoint a guardian ad litem during the conservatorship hearing to protect the interests of the absentee.

Retaining a Florida Family Law Attorney

If you have an incapacitated family member, or one who has gone missing, it’s crucial to meet with a skilled Florida family law attorney right away. The attorneys at The Law Offices of Schwartz | White have years of experience with guardianships and conservatorships, as well as other family law matters. Contact our office online or at 561-391-9943 today to schedule a consultation.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/0744.html

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