Guardianship

Guardianship is a legal process that is intended to protect someone who can no longer care for their own well-being and make safe and sound decisions about themselves personally or their property. This can be the result of a lack of capacity and due to not having adequate estate planning documents in place, minor children losing their parents, or developmental disability.  Guardianship is sometimes necessary to prevent self-neglect and stop undue influence or exploitation of our must vulnerable population. The purpose of guardianship is to protect those who cannot protect themselves by appointing a legal guardian to care for the individual.

The court appoints a guardian (family member/friend or professional guardian) to oversee the person and/or property of an individual (Ward) who has been deemed incapacitated due to mental/cognitive issues or physical disabilities.

1. Guardian Advocate:

A less invasive form of guardianship created for those who face developmental disabilities at a young age. Typically, a parent is appointed guardian of their child who has been diagnosed with a disability(s).    Both parents have the option of being co-guardian advocates. This type of guardianship does not have an examining committee appointed to determine incapacity.  The person already has a confirmed diagnosis for a disability that limits their cognitive function.

Florida law does not require a Guardian Advocate to have an attorney but we recommend you proceed with an attorney to ensure that all requirements of Florida law are met and that you have legal representation if there are any challenges to proceeding as a Guardian Advocate for your loved one.   The Court does appoint an attorney to represent the disabled person to ensure they have a voice in the process.

The process to be appointed a guardian advocate generally involves the following:

1. Petition for Appointment of Guardian Advocate
2. Oath of Guardian Advocate attesting to fulfill all responsibilities
3. Application of Guardian Advocate
4. Order Appointing Attorney (Elisor) for Disabled Person.
5. Court Appointed Attorney visits the disabled person.
6. Notice of Hearing
7. Letters of Guardianship
8. Order Appointing Guardian
9. Hearing
10. Completion of an 8 hour guardianship training course.
11. Filing a Verified Inventory (Identifying Assets of the Disabled Person at the time of appointment)
12. Filing an Initial Plan outlining the plan for ensuring the disabled person is appropriately cared for and assets are managed within the guidelines established by the Court and Florida Guardianship Statute 744.
13. Filing Annual Accountings and Annual Plan

Guardianships for Minors:

If both parents die or develop a disability, then a guardian is needed.  This type of guardianship ends when the child reaches 18 years of age.  Regardless, the court shall appoint a guardian of the property of a child when the minor is entitled to an inheritance of his/her parents’ estate or when a minor receives a monetary settlement from a lawsuit that exceeds $15,000. 

Guardian of Adult:

1.    Plenary Guardian:  A person who has been appointed by the court to exercise all delegable legal rights and powers of the Ward after the court has found that the Ward lacks the capacity to perform all the tasks necessary to care for his or her person or property.  The guardian is responsible for all required person and property reports to the court.

2.    Limited Guardian:  A guardian who has been appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person has voluntarily petitioned for appointment of a limited guardian.  The Guardian is responsible for reports ordered by the court.

3.    Guardian of Person:  The guardian is responsible for making personal decisions for the Ward.  Such decisions usually include day-to-day living arrangements, health care, education, and other matters related to the Ward’s comfort and well-being.  The Guardian is required to submit initial plans of care and annual plans to the court.

4.    Guardian of Property:  The guardian is responsible for managing all the assets of the Ward, ie., bank accounts, stocks, property, paying expenses, selling or managing property when approved by the court, filing taxes and submitting verified inventory and accountings to the court.
 

Basic Facts About Guardianship Cases

• The Court appoints guardians.
• Potential guardians must submit application and background check to the Court.  
• An individual can only be declared legally incompetent by a Circuit Court Judge. A doctor’s diagnosis is just evidence of incompetency.
• If the Ward is living in an unsafe environment and/or is vulnerable to exploitation, the court will appoint an emergency temporary guardian before the capacity of the Ward has been ruled upon.
• Guardianship ends when the Ward dies or it is determined that the Ward’s capacity has improved where a guardian is no longer required.
•  All Wards are appointed an attorney (Elisor) and served notice of petition for appointment of a guardian and petition to determine incapacity by their court appointed attorney prior to the hearing.
• Wards are allowed to select a private attorney if they so choose.
• F.S. 744 is the guardianship law in Florida
• Florida Probate Rules: Part I –GENERAL; PART III – GUARDIANSHIP; Part IV – EXPEDITED JUDICIAL INTERVENTION CONCERNING MEDICAL TREATMENT PROCEDURES relevant to guardianship matters.