Guardianship

What is Guardianship in Florida?

A guardianship is a legal proceeding in which a Florida Circuit Court appoints a guardian to exercise some or all of the legal rights and decision-making authority over a ward (the incapacitated person or minor). This protective measure ensures that the ward’s personal, medical, and financial needs are met and their interests are safeguarded.

It’s crucial to understand that guardianship is considered a measure of last resort in Florida. The courts prioritize “least restrictive alternatives” to guardianship whenever possible, such as properly executed Durable Powers of Attorney, Health Care Surrogates, or certain Trusts, which allow individuals to designate decision-makers while they still have capacity.

When is a Guardianship Necessary in Florida?

Guardianship typically becomes necessary in situations where an individual:

• Is an incapacitated adult. This often involves individuals suffering from conditions like Alzheimer’s, dementia, traumatic brain injury, severe mental illness, or other debilitating conditions that prevent them from managing their own affairs, finances, or personal care.
• Is a minor. A guardianship may be required for a minor child who:
  • Has received a significant inheritance or settlement exceeding $15,000.
  • Has no living parents or whose parents are unable or unwilling to care for them.
• Has a developmental disability. For individuals with developmental disabilities turning 18, a “Guardian Advocacy” may be a more appropriate and less restrictive alternative to a full guardianship, allowing them to retain certain rights.

Types of Guardianship in Florida

Florida law provides for different types of guardianships, tailored to the specific needs of the ward:

Guardianship of the Person

Grants the guardian authority to make decisions regarding the ward’s personal care, medical treatment, living arrangements, and overall well-being.

Guardianship of the Property (or Estate)

Grants the guardian authority to manage the ward’s financial affairs, including assets, investments, and payment of bills.

Plenary Guardianship

A full guardianship where the court removes all of the ward’s rights and delegates them to the guardian.

Limited Guardianship

The court removes only specific rights from the ward and delegates them to the guardian, allowing the ward to retain other rights they are capable of exercising. This is favored when appropriate.

Voluntary Guardianship

An adult who has legal capacity but needs assistance due to physical limitations can petition the court to appoint a guardian to manage some or all of their property.

Emergency Temporary Guardianship

A short-term guardianship (typically 90 days) established in urgent situations where immediate action is needed to prevent harm to the ward or their assets.

Guardian Advocacy

A special proceeding for individuals with developmental disabilities that allows family members or caregivers to obtain legal authority without a formal determination of incapacity, empowering the individual to maintain more control over their life.

The Florida Guardianship Process: What to Expect

The process of establishing a guardianship in Florida is rigorous and involves several key steps:

1. Filing a Petition to Determine Incapacity (for Adults): An interested party files a petition with the court, alleging that an individual is incapacitated.
2. Examining Committee Appointment: The court appoints an “examining committee” (typically two medical professionals and one other qualified professional) to evaluate the alleged incapacitated person (AIP). They conduct physical, mental health, and functional assessments and submit a report to the court.
3. Appointment of Attorney for the AIP: The court appoints an attorney to represent the AIP’s interests throughout the proceedings. The AIP also has the right to retain their own attorney.
4. Incapacity Hearing: Based on the examining committee’s reports and other evidence, the court holds a hearing to determine if the individual is incapacitated and to what extent.
5. Petition for Appointment of Guardian: A petition is filed to appoint a suitable guardian contemporaneously with the Petition to Determine Incapacity. The court prioritizes individuals named as “pre-need guardians” in a valid declaration of Pre-Need Guardian, Agents under a Durable Power of Attorney, and Designed Health Care Surrogates.
6. Guardian Qualifications and Training: Potential guardians must undergo background and credit checks and, if appointed, complete a mandatory 8-hour guardianship training course.
7. Court Oversight and Reporting: Once appointed, guardians are under the strict supervision of the court. They must submit initial and annual plans, inventories of assets, and detailed annual financial accountings to ensure the ward’s best interests are consistently met.