Guardianship FAQs

Guardianship is the appointment of a person by the court to exercise control over part, or all, of another individual’s person and/or property. The appointment is generally made when a person is found to lack capacity and is incapable of exercising control over themselves.

The person who is appointed by the court to care for the incapacitated person and/or his property is referred to as the “guardian.”  The person who lacks capacity is referred to as the “alleged incapacitated person” until a guardian is appointed by the court.  Thereafter, the incapacitated person is referred to as the “ward.”

A petition to determine incapacity of a person may be executed by an adult person pursuant to Florida Statute 744.3201(1). However, attorney’s fees and costs may be assessed against a petitioner if the court determines that the petition was filed in bad faith.

Generally, the petition must state the name, age, and address of the alleged incapacitated person as well as the petitioner.  It must also indicate the relationship that the petitioner has with the alleged incapacitated person and the primary language spoken by the alleged incapacitated person.

In addition, the petition must provide the names and addresses of next of kin, the name of the alleged incapacitated person’s physician, if known, and any other witnesses with knowledge of the facts.

The petitioner must state the grounds for the belief that the alleged incapacitated person lacks capacity.  Further, the law requires the petitioner to identify which rights the alleged incapacitated person is incapable of exercising such as the right to marry, vote, travel, or maintain a driver’s license.  (See Florida Statute 744.3215 for complete list of rights)

The petition must be signed under oath.

The court will appoint an attorney to represent the alleged incapacitated person.

The court must appoint an examining committee within five (5) days after the petition has been filed.  The court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion.

Committee members may not be related to or associated with each other, with the petitioner, with the alleged incapacitated person, or with any of the attorneys.  Within 15 days of appointment, each examining committee member must examine the alleged incapacitated person and submit a report with findings to the court.  A copy of the report is required to be served on the petitioner and the alleged incapacitated person’s attorney within three days of the report being filed and five days before the incapacity hearing.

The court will set a hearing date which “must be set no more than 14 days after the filing of the reports of the examining committee members, unless good cause is shown.”  F.S. 744.331(5)(a)

The clerk of court will serve a notice of hearing of the petition on the alleged incapacitated person and any other interested person set forth in the petition.  The notice is required to indicate the place and time of the hearing.

The hearing must be recorded by a court reporter and the court’s findings are subject to appeal.

The alleged incapacitated person has a right to be at the hearing and is required to be at the hearing unless the alleged incapacitated person’s attorney waives the appearance.

At the hearing, the burden to prove incapacity is on the petitioner.  The incapacity hearing is an evidentiary hearing where witnesses may be called and evidence may be presented on the record.  The examining committee members and other witnesses may be called to testify.  The alleged incapacitated person’s attorney may offer evidence that there are alternatives to guardianship (e.g. the alleged incapacitated person has a Durable Power Of Attorney and Health Care Surrogate who can deal with property and make medical decisions on his/her behalf).

If the court finds by clear and convincing evidence that a person is incapacitated and that there is no alternative to guardianship, then the court will adjudicate that the alleged incapacitated person is an incapacitated person.  The incapacity may be limited or plenary (full) and may pertain to the person and/or the property.

The alleged incapacitated person retains only those rights not removed by the court.  Once incapacity is ordered, the process of appointing a guardian will begin.

If there is an urgent situation that requires the appointment of a guardian, there is a procedure to appoint a temporary guardian on an emergency basis.  This is just an interim procedure to be used when there is a true emergency.

The court must find that there is a risk of “imminent danger” that the physical or mental health or safety of the alleged incapacitated person will be impaired by delay or that the alleged incapacitated person’s property is in danger of being wasted or misappropriated unless immediate action is taken by the court.

If an emergency temporary guardian is appointed, the guardian is authorized to act on behalf of the alleged incapacitated person for 90 days or until a permanent guardian is appointed, whichever occurs first.  An additional 90-day extension may sometimes be granted upon request.

The emergency temporary guardian must file a final report within 30 days after the expiration of the temporary guardianship and must serve it on the successor guardian.

Florida Statute 744.309 outlines the basic qualifications necessary to be appointed as guardian.

The court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not. However, The court shall give preference to the appointment of a person who is related by blood or marriage to the ward. The court looks at factors such as education, ability to manage finances, and any other factor it feels is relevant to the ward’s situation.

The court is also required to consider the wishes expressed by the incapacitated person.  If the alleged incapacitated person has designated a standby guardian or preneed guardian pursuant to Florida Statute 744.309, the court shall appoint such person unless the court determines that doing so is contrary to the best interests of the ward.

There are two types of guardianship, as follows: guardianship of the property and guardianship of the person.  Many times both types are required to protect the ward.  However, there are cases in which only one type is necessary.

The guardian of the property has a duty to locate and “marshal” the assets of the ward.  This includes all assets such as bank accounts, stocks, personal property and real estate.  The guardian is required to file an initial inventory and to swear that it is accurate and complete.  The assets are placed in the name of the guardianship.  It is the responsibility of the guardian to ensure that the all assets are safeguarded and spent appropriately for the ward’s benefit.  Annual accountings are required to be filed with the court for review and are subject to the court’s approval.

In addition to managing the ward’s assets and debts, the guardian of the property may prosecute or defend lawsuits on behalf of the ward.

The guardian of the property has certain powers that can be exercised without court approval and other powers that may be exercised but only after obtaining approval from the court.  These powers are set forth in Florida Statutes 744.444 and 744.441.

Guardianship of the person is a more intrusive than a simple guardianship of the property.  When a person has been adjudicated incompetent, the court will appoint a guardian to watch over and make major life decisions for the ward until the reason for incapacity no longer exists.  This might be until death in the case of an elderly ward.  The guardian of the person makes decisions affecting everything from the ward’s residence, visitation, medical care, socialization, travel, etc.

Guardians of the person are required to file annual reports with the court to inform the court as to the status and health of the ward.

There are times when an adult has documents in place that make a guardianship of the person unnecessary.  For example, he may have a health care surrogate to handle medical issues but all assets are in his sole name and he lacks capacity to manage them any longer.

In the case of a minor, a guardian of the property may be required by Florida law if a minor is going to receive property in excess of $15,000 in value.  For example, if a minor is to receive an inheritance or is awarded damages then a guardian of the property will be required to protect the minor’s property.

The most common example is when the ward created estate planning documents that eliminate the need for a guardian of the property.  For example, many people will create a “living trust” while they still have capacity.  By placing assets in a trust and then designating successor trustee(s), the person creating the trust has often circumvented the need for a guardianship of the property.  In this circumstance, if a guardian of the person is appointed he will work with the trustee to ensure that the ward’s needs are being met.  The guardian will determine the ward’s living arrangements and associated expenses and the trustee will pay the expenses from the trust assets.

In a plenary(full)  guardianship, all delegable rights are delegated to the guardian and no rights have been reserved to the ward.  In a limited guardianship, some delegable rights are delegated to the guardian while the ward reserves other rights. For example, in a limited guardianship the ward may reserve the right to make decisions about where he wants to live but may lose the right to marry or to enter into contracts.

Guardianships will end upon the death of the ward or if the ward’s capacity is restored pursuant to court order.  In the case of guardianships for a minor, the guardianship will often cease when the child reaches the age of adulthood.

Yes, the law requires guardians to be represented by an attorney except in very rare circumstances. If you have any further questions, contact us now at (239) 997-0078 for a free initial consultation regarding your specific situation.