In Florida, a guardian is a surrogate decision-maker who can make health, financial, and personal decisions for another person, known as the ward. The ward is typically either a minor or an adult with a physical or mental disability that impacts their ability to manage their affairs. A Florida court can appoint a guardian for a minor if both parents die or are incapacitated. A person can also petition the court to appoint a guardian for an incapacitated adult. Many families wonder when guardianship is necessary and may also struggle with what to do when a guardian is no longer needed.
The most significant benefit of guardianship is that the arrangement allows someone to step in and legally act on behalf of an incapacitated person with no other plans in place. Once someone is incapacitated, it's too late for that person to make arrangements to have a trusted friend or family member make decisions.
Guardianship allows a court to oversee the process and offers legal protections for the ward and accountability for guardians. A guardian has a fiduciary obligation, or legal duty, to act in the ward's best interests and must report to a court. If the guardian isn't fulfilling their obligations, a court can step in and remedy the situation or replace the guardian.
The downside of guardianship is that the court appoints the guardian, taking the decision out of the ward's hands and the ward's family. The court may not know who the ward would have chosen as a trusted representative. When an individual creates an advanced incapacity plan, a power of attorney or a trust, they can choose who will handle their affairs if incapacitated. The individual can also, to some extent, choose how their representative will manage their affairs.
Another shortcoming of a court-appointed guardianship is that it takes some time to arrange. Before the court appoints a guardian, there can be a time of uncertainty, and an incapacitated person's financial and personal affairs may suffer as a result. With an advanced incapacity plan, an individual can select their trusted representative in advance, allowing a more seamless transition, reducing family conflict, and ensuring that the representative can manage the individual's personal and financial needs immediately.
Once guardianship is in place, a court must enter an order of discharge to remove it. The court can discharge guardianship for several reasons, both voluntary and involuntary, under Florida law. See Fl. Stat. §744.521, .524 (2011).
The ward regains capacity or is “sui juris.”
“Sui juris” is a legal term that indicates an individual has full capacity and full legal rights. To restore the ward's rights, the guardian must file a “suggestion of capacity” with the court explaining that the ward can now manage their affairs. A court-appointed physician will then examine the ward and complete a report for the court. A judge will then determine if the court should restore some or all of the ward's rights. If the court only restores some of the ward's rights, the court may ask the guardian to file a new guardianship plan.
When the guardian can't locate the ward.
If the guardian can't find the ward through a diligent search, the court may allow the guardian to sell off the ward's assets and property and deposit the funds with the clerk of court. After this, the guardian must complete a final report before a judge relieves the guardian of their duties. This final report will also include an accounting of all receipts and disbursements under guardianship.
The property subject to guardianship is exhausted.
When there are no more assets left for the guardian to handle, the guardian can file a final report with the court showing all receipts and disbursements. The court can then either modify the guardianship or remove it altogether, depending on the ward's best interests.
The ward dies.
Even after the ward dies, the guardian must continue to fulfill their duties, including protecting and preserving the ward's assets until the guardian distributes all the assets, and the court lifts the guardianship.
The ward moves out of state, and the new state appoints a guardian.
For a ward to move out of Florida, the court must give the guardian permission. Once the ward moves and is no longer under the jurisdiction of the court, the court can allow the transfer of guardianship to someone in the new county or state.
When guardianship is no longer necessary, let us walk you through the steps of removing it.
To discharge a guardianship, the guardian and court will follow set procedures:
1. The guardian will file a discharge petition.
2. The discharge petition will state the reason for the termination, that the guardian has fulfilled the guardianship, and the unpaid and anticipated costs for the guardian, attorneys, accountants, or other agents.
3. The guardian will file a final report. The report will include receipts, payments, and amounts reserved for unpaid and anticipated costs.
4. The guardian will serve notice and a copy of the discharge petition to interested parties, including any personal representative of the ward.
5. Interested parties will have 30 days to file objections to the discharge petition and final report.
6. Once the parties resolve all objections through judicial action, withdrawal, or abandonment, the court can grant the discharge.
See Fla. R. Civ. P. 5.680. After the court discharges the guardianship, the guardian must still:
File a final accounting of all financial activities;
File final guardian and attorney fees; and
Distribute all guardianship assets.
Guardians should also keep a copy of all records for at least three years after a court terminates guardianship.
Making decisions when a loved one becomes incapacitated can be stressful and overwhelming, but you don't need to go through this alone. If you have questions about the guardianship process and how it works, or how advanced directives can help, contact us. We can help you or a loved one through a stressful guardianship process.