Medical Guardianship: 3 Essential Questions You Need to Ask to Protect Your Loved Ones

Medical Guardianship: 3 Essential Questions You Need to Ask to Protect Your Loved Ones

In Estate Planning, Guardianships by casalmorenoblog

In recent weeks, many people have been searching for answers surrounding the topic of medical guardianship. With the anxiety of COVID-19, it is no wonder why.

If you have a loved one who is in a high-risk category—for instance if they are over the age of 65 or have a compromised immune system—now is the time to start thinking about what will happen if they are incapacitated by the disease. With an estate plan in place, you can make sure that everyone is protected. At Casal & Moreno, we understand that this is not a pleasant topic to think about, but because of the urgency of the pandemic, we think it is best to be prepared.

With the answers to these three questions, you will be.

What Is a Guardianship?

A guardianship is a legal proceeding that appoints a guardian to someone who is incapacitated. The guardian—which can be an individual or institution—cares for the incapacitated person by making decisions for their care, which can include decisions regarding their assets, finances, and medical care.

What Is a Medical Guardianship?

There are different types of guardianships that address certain aspects of care. One of these deals with medical decisions. In Florida, this type is known as a guardianship of the person.  In order to obtain court authorization to be able to make medical decisions for an incapacitated individual, the petitioner has to file for guardianship with the court in the county where they reside.

How Is a Person Determined to Be Incapacitated?

Any adult can petition the court to determine whether someone is legally incapacitated. The court then appoints three experts, usually doctors, to examine the alleged incapacitated person (AIP) to determine the level of care that is needed. The court will also appoint an attorney to the AIP, however, they may request their own attorney instead. If two of the three experts deems that person not to be incapacitated—that is, they are able to care for themselves—the judge on the case will then dismiss the case. Alternatively, if the AIP is ruled incapacitated, the court schedules a hearing to determine if they are partially or totally incapacitated. In either case, the court will appoint a guardian to the AIP.

This process can take about 30-45 days. It can be easily avoided with a designation of a health care surrogate and a living will.

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If you are worried about a loved one during this stressful time, Casal & Moreno is here to help. Talk to us to learn more about how you can protect yourself and your family in a worst case scenario. Give us a call or schedule a consultation so we can discuss your case.

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