By David Shulman

The Guardianship of Mary Klatthaar

I’m sure there are some independently wealthy attorneys out there who take all of their cases pro bono. Most of us though are hard-working schlubs like everyone else who while we love what we do, need to pay the bills too. When we work there is some hope or expectation of getting paid. Sometimes though, cosmic forces conspire against you to prevent that from happening.

The Petition to Determine Incapacity

Such is the case in the 2nd DCA case of Guardianship/Estate of Mary W. Klatthaar (is that Klingon?). Shortly before Ms. Klattharr’s death, her nephew filed a Petition to Determine Incapacity against her. When a person is unable to make decisions for themselves regarding their person or property, the court can determine them to be incapacitated and to appoint a guardian to act on their behalf. The best way to avoid a Guardianship is to have proper estate planning with a durable power of attorney, designation of health care surrogate, and possibly a revocable living trust. With these documents in place, a person can designate someone else to make the decisions for them in the event of their incapacity.

Unfortunately without these documents in place, the alternative is a Guardianship. In Florida the first step to establish a Guardianship of a person is to file a petition to determine incapacity. Because a Guardianship is so drastic, the Court needs to be sure that the Alleged Incapacitated Person (AIP) has their rights protected before a Guardian is appointed. The AIP is appointed their own attorney to represent them in the proceeding. Additionally, the AIP is separately examined by three professionals, generally a psychiatrist, a psychologist and a social worker. The examining committee submits reports to the court as to their opinion of the AIP’s mental status.

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