Frequently Asked Questions.
Some of the most common questions related to guardianship are addressed below. Please note, however, that this information should not be considered legal advice. Every situation is different, so it's important to consult a qualified attorney to ensure you're getting the right answers.
WHAT IS A GUARDIANSHIP?
A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person. The procedure outlined on this page does not apply for appointment of a guardian advocate over a person with developmental disabilities.
WHAT IS A GUARDIAN?
A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person — called a "ward" — or for the ward’s assets.
WHO IS INCAPACITATED?
An incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements.
HOW IS A PERSON DETERMINED TO BE INCAPACITATED?
Any adult may file a petition with the court to determine another person’s incapacity, setting forth the factual information upon which they base their belief that the person is incapacitated.
The court then appoints a committee of three members, usually consisting of two physicians and one other person who, by knowledge, skill, training, or education, can form an expert opinion about the person alleged to be incapacitated. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.
The examination of the alleged incapacitated person normally includes a physical examination, a mental health examination, and a functional assessment.
The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If, however, the examining committee finds the person is unable to exercise some rights, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the incapacity hearing unless there are lesser restrictive alternatives to guardianship - a durable power of attorney, for example - that adequately address the person’s incapacity.
The court then appoints a committee of three members, usually consisting of two physicians and one other person who, by knowledge, skill, training, or education, can form an expert opinion about the person alleged to be incapacitated. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.
The examination of the alleged incapacitated person normally includes a physical examination, a mental health examination, and a functional assessment.
The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If, however, the examining committee finds the person is unable to exercise some rights, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the incapacity hearing unless there are lesser restrictive alternatives to guardianship - a durable power of attorney, for example - that adequately address the person’s incapacity.
WHO MAY SERVE AS GUARDIAN?
Any adult resident of Florida, related or unrelated to the ward, can serve as a guardian. Certain relatives of the ward who do not live in Florida also may serve as guardian. However, people who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Individuals who are professional or public guardians can serve as guardian. Additionally, institutions such as a bank trust department or nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the ward's property. The court gives consideration to the wishes expressed by the incapacitated person, either at the hearing or in a previously-written declaration.
The court may not appoint a guardian in some circumstances in which a conflict of interest may occur.
The court may not appoint a guardian in some circumstances in which a conflict of interest may occur.
WHAT DOES A GUARDIAN DO?
A guardian who is given authority over the property of the ward is required to inventory the property, invest it prudently, use it for the ward’s support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care, along with a physician’s report.
If the court finds the ward partially incapacitated, it will appoint a limited guardian to exercise only those rights that the ward is incapable of exercising.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care, along with a physician’s report.
If the court finds the ward partially incapacitated, it will appoint a limited guardian to exercise only those rights that the ward is incapable of exercising.
IS A GUARDIAN ACCOUNTABLE?
Yes. A guardian must be represented by an attorney who will serve as "attorney of record." Guardians are usually required to furnish a bond (financial institutions and public guardians are not required to do so), and may be required to complete a court-approved training program.
The clerk of the court reviews all annual reports of guardians of the person and property and presents them to the court for approval. Guardians who do not properly carry out their responsibilities may be removed by the court.
The clerk of the court reviews all annual reports of guardians of the person and property and presents them to the court for approval. Guardians who do not properly carry out their responsibilities may be removed by the court.
IS GUARDIANSHIP PERMANENT?
The guardianship does not have to be permanent. If a ward recovers, in whole or in part, from the condition that caused that person to be incapacitated, a petition can be filed with the court to restore the ward’s rights. In such a case, the court will have the ward re-examined and can restore some or all of the ward’s rights.
A guardian may be held accountable and removed if the guardian fails to carry out the expected duties or otherwise becomes ineligible to act as guardian. A guardian also may resign by providing notice to the court.
A guardian may be held accountable and removed if the guardian fails to carry out the expected duties or otherwise becomes ineligible to act as guardian. A guardian also may resign by providing notice to the court.
IS GUARDIANSHIP THE ONLY WAY TO HELP AN INCAPACITATED PERSON?
No. Florida law requires the least restrictive means of protecting people who are incapable of caring for themselves and managing their financial affairs, and guardianship is a means of last resort.
If a person creates an advance health care directive, a durable power of attorney, or a trust before losing capacity, he or she may not require the appointment of a guardian.
If a person creates an advance health care directive, a durable power of attorney, or a trust before losing capacity, he or she may not require the appointment of a guardian.
WHAT ABOUT GUARDIANS FOR MINORS?
A child’s parents are the child’s natural guardians, and generally may act on behalf of the child. In circumstances where the parents die or become incapacitated, or if a child receives an inheritance, proceeds of a lawsuit, or an insurance settlement exceeding $15,000, the court must appoint a guardian of the property. Parents may make a written declaration that names a guardian for their children in the event that both parents die or become incapacitated. A guardian also may be designated in a will.
