As a parent or family member, it is difficult to see a loved one become unfit to care for themselves due to a mental illness or substance use disorder. Sometimes, there may be a need for an Emergency Temporary Guardianship (ETG) to protect the individual at risk and help them find proper treatment. Also known as Florida Statute 744, the statute’s goal is to allow someone else to make decisions for someone who is not mentally capable or lacks capacity to do so for themselves and there are no advanced directives executed.
What is a Guardianship?
Audra Simovitch, Esq., recently shared some specifics surrounding the process, “After petitioning the court, a qualified person, such as a parent or physician, is granted Guardianship to make health and financial decisions for another person. For Guardianship to be granted by the court, “Imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken,” must be present.”
For Guardianship to be granted, the guardian must go through a background check that includes fingerprinting, they may not be a felon and must be over the age of 18. There is deference given to a family member, often a parent.
Although typically thought of when an elderly parent is diagnosed with Alzheimer’s or dementia, Guardianship is used to allow parents to make decisions for their child (18+) who, because of a mental illness or a history of substance use, is not making reasonable and rational decisions and is therefore a potential harm to themselves or another. It is also often used to help someone into treatment because their mental state is not allowing them to recognize the need for treatment.
Emergency Temporary Guardian is appointed for a 90-day period that can be extended up to another 90 days; Incapacity Determination must be made to have a permanent guardian appointed. A guardianship may be limited to person and or property and can limit what rights are taken away from the individual and given to the guardian. The guardian, whether an emergency guardian or permanent guardian, steps into the shoes of the individual and decides for them, taking away their rights to:
- Sue or be sued
- Choose their residence
- Choose whom they socialize with
- Manage their property
- Consent or deny consent to medical treatment
- Own a firearm
Each state has guardianship statutes, however; Florida does not have the Uniform Guardianship statute so that guardianship cannot be transferred to another state.
Unlike the Marchman Act, which is strictly for substance abuse, the Guardianship statute can be used where there is a history of substance abuse or mental health is the primary concern.
What help is available?
Audra Simovitch, Esq. has practiced in both Massachusetts and Florida for the past twenty-two years in the areas of Estate Planning, Probate, Guardianship and Real Estate Law. She graduated from Nova Southeastern Shepard Broad Law School in 1992 and continued her studies to earn an LLM degree in Taxation from Boston University Law School. In 2011 she earned an LLM in Banking and Finance from Boston University Law School, and opened her own practice in 2014.
Lifeskills South Florida provides residential and outpatient treatment for individuals suffering from mental disorders such as anxiety, depression, bipolar disorder and from co-occurring substance use disorder. Our multidisciplinary treatment team works with you or your loved one to design a customized treatment plan to meet your specific needs and goals. We focus not only on the presenting problem but also target the underlying issues that contribute to them.