Nov. 16, 2021
When you think of a guardian and ward, the highly unusual relationship between the fictional Little Orphan Annie and Daddy Warbucks may spring to mind. But guardianships are far more frequent and more mundane than you might think. Guardianship can also apply to adults who are no longer capable of managing their affairs.
Florida law allows for both voluntary and involuntary guardianship. A voluntary guardianship might happen if someone if fully competent mentally, but cannot manage their affairs, and voluntarily petitions the court for a guardian of their choice. On this page, we'll discuss the details of guardianship in Florida, including the process of petitioning the court, who may serve as a guardian, the incapacity evaluation, and a guardian's duties and accountability.
What is Guardianship?
A guardianship is a legal proceeding in which a court appoints a guardian to oversee and exercise the legal rights of an incapacitated person. Under Florida law, someone is incapacitated if a court finds by clear and convincing evidence that they can't care for their own needs. If someone can't make decisions about their health, wellbeing, or property, or if they are a minor, a court can appoint a guardian. A guardian is an individual or institution, like a bank trust department or nonprofit corporation, appointed by the court to care for the incapacitated person, or ward, as well as the ward's assets.
How Does Guardianship Work?
Any adult can file a petition with the court in Florida to determine if another person is incapacitated, setting forth the facts upon which they believe that someone is incapacitated.
1. Capacity Evaluation
The court will then appoint a committee of three members. Two members are usually physicians, and the third is someone who can form an expert opinion by skill, knowledge, training, or education. One of the three members must have experience with the type of incapacity alleged in the court filing. The incapacitated person will generally undergo a physical exam, a mental health exam, and a functional assessment. Each person on the committee will then submit a report to the court.
2. Court Determination of Capacity
The court will also appoint an attorney to represent the allegedly incapacitated person, although they may substitute their attorney. If a majority of the committee members determine that the individual is fully capable of caring for their own needs, the court must dismiss the petition. If the examining committee members determine that the individual is incapable of exercising certain rights, the court will set a hearing to determine whether the individual is wholly or partially incapacitated.
If the court finds the individual incapacitated in any way, the court will appoint a guardian. If there are less restrictive alternatives to guardianship that can address the individual's incapacity, the court will consider those options and create a limited guardianship. The court will appoint a guardian with plenary powers if it is necessary to appoint a guardian to exercise all legal rights and powers for a ward.
3. Guardian's Duties
A guardian can perform those specific duties determined by the court. Duties may include inventorying the ward's property, investing it wisely, and using it for the ward's support. A guardian may also be in charge of a ward's personal care, mental health care, and medical care. The guardian must file detailed annual financial reports as well as a yearly plan for the ward's care, including a physician's report.
The guardian is held accountable for the care of the ward and the ward's assets. A guardian typically must furnish a bond and be represented by an “attorney of record.” If the guardian fails to perform their duties adequately or fails to file the necessary reports, the court may remove the guardian.
What Rights Can a Court Remove in the Incapacity Hearing?
It's important to remember that there are certain rights a court cannot remove during an incapacity hearing. These rights include:
Representation by counsel
Access to the court
Receiving a proper education
Remaining free from abuse, neglect, or exploitation
Remaining as independent as possible
Receiving necessary services, treatment, and rehabilitation
To be treated with dignity and respect
Rights that a court may appoint to a guardian include:
To sue and defend a lawsuit
To decide living arrangements
To marry or divorce
To apply for government services
Medical and mental health treatment
Who May Serve as Guardian?
Any adult resident of Florida, whether related to the ward or not, may serve as a guardian. Certain relatives of the ward who are not Florida residents may also serve as guardian. However, convicted felons or those incapable of performing a guardian's duties may not serve as guardian. A court may appoint a nonprofit corporation or a professional or public guardian as a guardian. But a bank trust department may only serve as guardian of the ward's assets.
If the ward declared a guardian in writing before becoming incapacitated, the court will appoint that person as guardian if they are qualified, unless the court determines it isn't in the ward's best interests. The court may refuse to appoint a particular guardian if it would create a conflict of interest.
Guardianship for Minors
In Florida, and most states, no one under the age of 18 is legally capable of making their own decisions or executing contracts. Parents typically make these decisions for their children. If a child's parents die or are incapacitated, the court may appoint a guardian. If a child receives more than $15,000 in a lawsuit or inheritance, the court must also appoint a guardian. See § 744.387(2) Fla. Stat. (2019).
Guardianship Legal Advice
If you need to file a court petition for guardianship, or if you would like to set up a future guardianship for yourself or your loved ones, we can guide you through the process. If you are beginning your estate planning, we can help you as well. The trusts and estates attorneys at Veliz Katz Law have more than 60 years of experience helping clients in Central Florida administer their loved ones' estates and guardianship. Contact us to schedule your free consultation.