What is a Guardian?
A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to act on behalf of an incapacitated person — called a “ward” — or for the ward’s assets.
Who is Incapacitated?
An incapacitated person means a person who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements of the person.
How Is A Person Determined To Be Incapacitated?
Any adult may file a petition — the “Petition to determine incapacity” — with the court to determine another person’s alleged incapacity, setting forth the factual information upon which they base their belief that the person is incapacitated.
Once the Petition to determine incapacity is filed with the court, the court, within five (5) days, will appoint a committee — “the examining committee” — of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, a person with an advanced degree in gerontology, or any 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. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.
The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court.
The examination of the alleged incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.
If the majority of the examining committee members concludes that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that adequately address the person’s incapacity. Depending on the court’s determination, the court may appoint a guardian of the person only, a guardian of property only, or a guardian of the person and property.
Who May Serve as a Guardian?
Any adult resident of Florida, related or unrelated to the potential ward, can serve as a guardian. Certain relatives of the ward who do not live in Florida also may serve as guardian. However, people who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Individuals who are professional or public guardians can serve as guardian. Additionally, an institution such as a nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the property.
If the incapacitated person (the “declarant”) — prior to any determination of incapacity — named a preneed guardian by making a written declaration that named such person to serve as guardian in the event of the declarant’s incapacity, the court shall appoint that guardian, as long as he/she/it is qualified, and unless the court determines appointing such guardian is contrary to the best interests of the ward.
The court may not appoint a guardian in some circumstances in which a conflict of interest may occur.
What Does a Guardian Do?
A guardian who is given authority over property of the ward is required to inventory the property, invest it prudently, use it for the ward’s support and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental, and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care along with a physician’s report.
If the court finds the ward partially incapacitated, it will appoint a limited guardian to perform only those rights that the ward is incapable of exercising.
Is a Guardian Accountable?
Yes. A guardian must be represented by an attorney who will serve as “attorney of record.” Guardians are usually required to furnish a bond (financial institutions and public guardians are not required to file a bond) and may be required to complete a court-approved training program.
The clerk of the court reviews all annual reports of guardians of the person and property and presents them to the court for approval. Guardians who do not properly carry out their responsibilities may be removed by the court.
Is Guardianship Permanent?
The guardianship does not have to be permanent. If a ward recovers in whole or part from the condition that caused that person to be incapacitated, a petition can be filed with the court to restore the ward’s rights. In such a case, the court will have the ward re-examined and can restore some or all of the ward’s rights.
A guardian may be held accountable and removed as guardian if the guardian fails to carry out the expected duties or otherwise becomes ineligible to act as guardian. A guardian also may resign by providing notice to the court.
Is Guardianship the Only Means of Helping an Incapacitated Person?
No. Florida law requires the use of the least restrictive alternative to protect people incapable of caring for themselves and managing their financial affairs whenever possible. If a person creates an advance health care directive, a durable power of attorney or trust while competent, he or she may not require a guardian in the event of incapacity.
What About Guardians for Minors?
Parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents’ parental rights are terminated. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. Under specific circumstances and upon petition of a parent, brother, sister, next of kin, or other person interested in the welfare of the minor, the court may appoint a guardian for a minor without the necessity of an adjudication of incapacity. In circumstances where the parents die or become incapacitated or if a child receives an inheritance, proceeds of a lawsuit, or insurance policy in which the gross settlement involving the minor’s claim equals or exceeds $50,000, the court shall appoint a guardian to represent the minor’s interest before approving the settlement of the minor’s claim – unless a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor. Both parents or a surviving parent may make and file with the clerk of the court a written declaration naming a guardian of the minor’s person or property to serve if both parents die or become incapacitated. A guardian also may be designated in a will.
FOR MORE INFORMATION ABOUT GUARDIANSHIP
Contact your lawyer, your local bar association, or The Florida Bar Lawyer Referral Services — 800-342-8011. Guardianship forms are available for a fee through Florida Lawyers Support Services, Inc. Your public library or a law library also may be able to provide the forms.
The material in this pamphlet represents general legal advice. Since the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.
This pamphlet is produced as a public service for consumers by The Florida Bar.
[Updated May 2022]