CARING FOR THOSE WHO CAN NO LONGER CARE FOR THEMSELVES

What Is a Guardianship?

In some circumstances, it is necessary to have a personal advocate in place to make decisions when someone no longer has the capacity to make sound decisions on their own. A guardian is a surrogate decision-maker appointed by the court to make decisions for an individual. After adjudication, the subject of the guardianship is referred to as a "ward."

How is a guardian appointed?

Florida law allows both voluntary and involuntary guardianships:

Involuntary

Involuntary guardianship is the process by which the court finds an individual's ability to make decisions so impaired that the court gives the right to make decisions to another person. The process begins when a concerned person (called the petitioner) files a petition with the court. Guardianship is only warranted when no less restrictive alternative—such as durable power of attorney, trust, health care surrogate or proxy, or other form of pre-need directive—is found by the court to be appropriate and available. To prevent an abuse of power, the courts will require an examination by a committee of three experts, followed by a hearing to determine competency.

Voluntary

A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily asks for help by petitioning the Court for the appointment.

Types of Guardianship

Florida law provides for two types of guardianship; limited and plenary adult guardianship.

Limited Guardianship

A limited guardianship is appropriate if the court finds the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property; and if the individual does not have pre-planned, written instructions for all aspects of his or her life.

Plenary Guardianship

A plenary guardian is a person appointed by the court to exercise all delegable legal rights and powers of the adult ward after the court makes a finding of incapacity. Wards in plenary guardianships are, by definition, unable to care for themselves.

Florida Statute

Florida has very specific laws governing guardianship proceedings and guardian activities, all of which are designed to protect the interests of the ward. A Florida guardian is accountable to the local court. The guardians must file initial and annual reports on the status of the ward and account for all financial activity. Guardianships are controlled by Chapter 744 of the Florida Statute.

Need more information about guardianship? Call to schedule a consultation at 321-426-1848 or toll free at 800-495-9153 or send us an email.