Guardianship

What Is Guardianship?

A guardianship is a legal proceeding in Circuit Court which a guardian is appointed to exerciser legal rights of an incapacitated person.

What Is a Guardian?

A guardian can be an individual or an institution and is appointed by the court to care for an incapacitated person or their assets.

Who Can Be a Guardian?

Any adult resident of Florida can serve as a guardian whether related to the ward or not. If a relative does not live in FL they may also serve as guardian. An institution can be appointed guardian, but a bank trust department may act as guardian only of the property. Convicted felons cannot be appointed.

If the incapacitated person has a written declaration of pre-need guardian, the court shall appoint that guardian, if he/she/it is qualified, unless the court determines appointing such guardian is contrary to the best interests of the ward.

A competent adult may also petition the court to appoint a voluntary guardian for himself or herself.

Guardian Qualifications

A person 18 years of age or older who has an interest in the protection of the personal or property rights of the incapacitated person may qualify to serve as a court appointed guardian. A completed Application for Appointment of Guardian form must be submitted by the proposed guardian at the time a guardianship case is opened. The Court will review the application to ensure the guardian will best serve the needs of the ward.

Fingerprint and Background Check requirements:

The Florida Department of Law Enforcement (FDLE) no longer accepts or processes hard copy guardian applicant fingerprint cards. Fingerprints are to be submitted electronically via a live scan device.

Guardian Responsibilities

A guardian of the property is required to file an Initial Inventory of the ward’s assets within 60 days of his appointment. Subsequently, an annual accounting of the assets will be required. A guardian of the person is required to file an Initial Plan for the care of the ward within 60 days of his appointment. Subsequently, an annual plan is required to provide information to the court about the health and physical wellbeing of the ward.

Guardian Advocate:  A developmentally disabled person may be eligible for a less restrictive type of guardianship, known as a guardian advocate. A developmentally disabled person may be eligible for a guardian advocate to be appointed.

Minority:  A guardianship must be established for the property of a minor child when an amount over $15,000 is to be paid to the minor. This may occur through an inheritance or through a settlement of a legal action. Guardianship of the person of a minor child may need to be established if both natural parents are deceased, incapacitated or unavailable. Guardianship is not the same as custody. For information on custody of a minor, please see Family Law Rules and Forms.

Incapacity:  A guardianship for an alleged incapacitated person can be initiated by filing a Petition to Determine Capacity and a Petition to Appoint Guardian with the Clerk of the Circuit Court. The proposed guardian must be represented by an attorney.

The alleged incapacitated person and next of kin will be served with a notice and a copy of the court order appointing an examining committee and setting a hearing. An attorney will be appointed to represent the alleged incapacitated at the hearing. Each member of the examining committee submits his/her report to the court after examining the alleged incapacitated person. At the hearing, the court will decide regarding the capacity of the alleged, and if necessary, appoint a guardian.

Voluntary:  A person may voluntarily petition the court for appointment of a guardian for his/her property when, though mentally competent, he/she is incapable of the care, custody, and management of his estate by reason of age or physical infirmity. A certificate of a licensed physician is required, stating that he has examined the individual and they are competent to understand the nature of the guardianship and his delegation of authority.

The Ward

The incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his/her property or lacks some essential health and safety requirements. They are called a “ward” in the proceeding.

Is An Attorney Required?

A guardian must be represented by an attorney.