Guardianship FAQ
What is guardianship and when is it necessary in Florida?
Guardianship in Florida is a legal process initiated through the Court system. A guardianship is established when the Court appoints an individual, known as the “guardian,” to make decisions on behalf of a “ward” — a person who has been declared legally incapacitated or unable to manage their own affairs. Depending on the specific case, the guardian may be granted authority over the ward’s personal, financial, legal, and medical-related matters.
What are the different types of guardianship in Florida?
The court can grant various forms of guardianships, including:
Limited Guardianship - When the Court finds that a person is not completely incapacitated, the Ward will retain some of their legal rights and some legal rights will be removed and delegated to a guardian to make on their behalf. In a Limited Guardianship, the incapacitated person may still make decisions in specific areas where they have the capability, while the guardian takes care of other areas where capacity is lacking.
Plenary Guardianship - Plenary Guardianship is a comprehensive measure for a completely incapacitated individual. In such cases, the Court grants the guardian absolute authority over all aspects of the person’s life, removing all of the person’s legal rights.
Guardian Advocacy - You can gain legal authority to act on behalf of a loved one who has a developmental disability through Guardian Advocacy, which empowers parents and family members to make important decisions for individuals in need.
Minor Guardianship of the property- A minor requires a legal guardian of the property when the minor has inherited a large amount of money (more than $15,000) or is entitled to receive assets from a lawsuit or settlement exceeding $15,000.
What happens when your special needs child turns eighteen?
When a special needs child turns eighteen, they are considered a legal adult in the eyes of the law, regardless of their cognitive or developmental abilities, prompting significant changes for both the individual and their caregivers. A Guardianship should be implemented to allow a family member or parent the legal authority to continue making decisions on behalf of the adult child, especially if the child lacks the capacity to make informed decisions independently due to their disability. Additionally, the transition may entail applying for government benefits and services tailored to adults with disabilities. This transition to adulthood for a special needs child needs careful planning and support to facilitate a successful transition into independent adulthood.
When is the best time to start the guardianship proceeding with a minor turning eighteen?
The ideal time to initiate a guardianship proceeding for a minor approaching eighteen depends on various factors, primarily centered around the individual’s circumstances and needs. Typically, it’s prudent to begin the process in advance, ensuring a smooth transition into adulthood. You can contact the firm about one or two months prior to the minor’s eighteen birthday to allow sufficient time to gather the documentation required to commence the incapacity proceeding. This early start minimizes disruptions and ensures that appropriate arrangements are in place once the minor reaches eighteen. Keep in mind that to open the case in Court, the ward must already be of legal age.
Who can be appointed guardian in Florida?
To qualify as a guardian in Florida, a person must:
- Be at least 18 years old;
- Be a resident of Florida, or a non-resident who is related to the ward by blood, marriage, or legal adoption;
- Have no felony convictions or disqualifying criminal history;
- Provide their credit report (this is a requirement in some counties);
- Successfully complete a state-approved guardianship training course;
- Undergo fingerprinting and background screening.
Courts prioritize individuals who are trustworthy, capable, and familiar with the ward’s needs.
What is the legal proceeding of guardianship?
To obtain guardianship over an adult, you must first initiate a mental health matter to assess the capacity of the alleged incapacitated person. The Court will appoint an examining committee of 3 individuals to evaluate the individual, all of which must file their report with their recommendations and findings with the Court. An incapacity hearing will take place with a magistrate or Judge to review the committee’s findings. Ultimately, the judge determines which legal rights, if any, should be removed and appoints a legal guardian, if warranted.
If your child has a developmental disability, you might need to petition the Court to become a guardian advocate when he or she turns 18. Unlike traditional guardianship, you do not have to prove that your loved one is incapacitated. However, you must demonstrate that he or she was diagnosed with a developmental disability before age 18.
If the judge grants your petition, they will create an order that details your responsibilities.
What are the responsibilities of a guardian in Florida?
A guardian is legally responsible for making decisions and acting in the best interests of the ward. Duties may include:
- Scheduling and attending medical appointments;
- Overseeing medications, therapies, and care providers;
- Managing personal care, housing, and hygiene needs;
- Handling financial matters, including budgeting and bill payment;
- Filing legal documents and signing contracts on the ward’s behalf;
- Preparing annual reports and accountings for Court review.
Guardians must act in good faith, with honesty and loyalty, and may be subject to court oversight throughout their appointment.
How does Guardianship commence?
The guardianship process in Florida begins with the filing of a Petition to Determine Incapacity in the Mental Health Division. Any competent adult may file this petition on someone’s behalf if they believe such person is unable to manage their personal and/or financial affairs. After the petition is filed, the Court:
- Appoints a three-member examining committee (must be a licensed physician or psychiatrist) to assess the alleged incapacitated person.
- Appoints an attorney to represent the alleged incapacitated person.
- Schedules an incapacity hearing to review the committee’s findings.
If the Court determines the individual is partially or totally incapacitated and no less restrictive alternatives exist (such as a Durable Power of Attorney or Health Care Surrogate), the Court may appoint a guardian and establish either limited or plenary guardianship.
How does Florida law define the scope of authority granted to a guardian over the person and estate of the ward?
The scope of a guardian’s authority is determined by the Court based on the examining committee’s findings. The committee provides:
- A diagnosis and prognosis;
- Recommendations for medical or therapeutic treatment;
- A list of legal rights the person may retain or require assistance with.
Based on these reports and testimony, the Court removes certain legal rights (such as the right to make medical decisions, manage finances, or enter contracts) and delegates them to the guardian. This framework ensures that the guardian’s authority is tailored to the ward’s specific needs.
How long does guardianship last in Florida?
Guardianship remains in place until it is terminated by the Court. It may end if:
- The ward passes away;
- The ward regains capacity where the Court restores their legal rights;
- The Court determines guardianship is no longer necessary.
Guardians are required to file annual reports with the Court each year to verify that the ward is taken care of and still requires a guardian and to verify that their assets are all properly accounted for.
How can guardianship be avoided in Florida?
Whenever possible, individuals, families, and Courts strive to avoid guardianship because it’s a legal process that inevitably strips away some civil rights and may collide with the ward’s wishes. The person a court appoints as legal guardian may not be the person the ward would have chosen for themselves.
Timely estate planning can include appropriate arrangements that preserve a person’s interests, follow their wishes, and help avoid guardianship. Alternatives to guardianship may include a Durable Power of Attorney, Health Care Surrogate, revocable trust, and more. These are alternatives to guardianship, but they require action before incapacity begins. Our estate planning attorney can help you choose the right strategy to avoid legal emergencies that call for guardianship.
How do I know if I need a Durable Power of Attorney or a Guardianship?
The appropriate choice depends on the individual’s mental capacity and the urgency or complexity of their situation. If the person is still competent, a Durable Power of Attorney may suffice. If the person is already incapacitated and did not prepare advance directives, guardianship may be the only option. Our Florida guardianship attorney can help evaluate your situation and recommend the right course of action.
What are the differences between a guardian and a guardian advocate?
- A guardian is appointed for individuals that are found to be legally incapacitated.
- A guardian advocate is appointed specifically for individuals with developmental disabilities such as autism, cerebral palsy, or down syndrome.
Guardian advocacy does not require a formal declaration of incapacity. Instead, the Court reviews documentation of the disability and determines which areas (health care, education, finances) require oversight. The goal is to support rather than fully restrict, allowing the individual to retain as much independence as possible.
What annual documents must be presented to the Court each year?
Guardians in Florida are legally required to file annual reports to ensure the ongoing protection and care of the ward. These include:
1. Annual Guardianship Plan – A summary of the ward’s current condition, residence, medical care, and social activities.
2. Annual Accounting – A report of income, disbursements, and the current value of the ward’s assets.
3. Physician’s Report – An evaluation completed by the ward’s primary physician.
Failure to file these documents may result in court sanctions or removal of the guardian.
Can there be more than one guardian appointed for the same ward?
Yes. Florida law allows the appointment of co-guardians when appropriate. Co-guardians can share responsibilities or divide them—one may handle medical decisions while the other manages financial matters. The Court must determine that this arrangement is in the ward’s best interest and that both guardians are qualified and capable of fulfilling their roles.
What is a standby guardian?
A standby guardian is a person designated to assume guardianship responsibilities if the current guardian becomes unable or unwilling to serve. This designation ensures continuity of care and decision-making for the ward without requiring an emergency court petition. The court must still confirm the appointment of the standby guardian with a court order.