Guardianship

What is Guardianship? Guardianship is the process designed to protect and exercise the legal rights of individuals who lack the capacity to make their own decisions for their care or property, and who have not made plans to address what happens when they become incapacitated. Guardianship in Florida is governed by the Florida Guardianship Law and The Florida Probate Rules

How is a Guardian Appointed? A Petition to Determine Incapacity is filed with the court to determine if a person lacks the capacity to take care of his or her self and property (assets). A Petition to Appoint a Guardian is usually filed at the same time. The court appoints an attorney to represent the alleged incapacitated person (the AIP). The attorney meets with the individual, makes an assessment in that person’s best interests and files a report with the court. The court also appoints a committee of three members to conduct an evaluation and report back to the court. This committee consists of one physician, one psychiatrist, and either another physician or psychiatrist, a nurse, a social worker, or a lay person qualified to make such an evaluation. The court holds a hearing to review all relevant evidence, including the reports of the examining committee. If the AIP is found to be incapacitated, the court must determine if there is a less restrictive alternative to guardianship. If there is not, the court appoints a guardian and issues an Order that states which personal and property rights are to be taken away and exercised by the guardian. An individual or corporation can be appointed by the court to manage some or all of the personal and property affairs of a person.

Can Guardianship be Avoided? Advance Directives such as a Durable Power of Attorney, a Designation of Health Care Surrogate, and a Revocable Trust (Living Trust), executed while having capacity, can give powers to an Agent (usually a relative or friend) who can act on behalf of a person if they are unable, physically or cognitively, to take care of their well-being or income and assets.

Pre-Need Guardianship You can name a person who you wish to serve as your guardian should you become incapacitated in the future. The writing must be signed in the presence of two attesting witnesses. When a Petition for Incapacity is filed, this written declaration creates a rebuttable presumption that the person named is entitled to serve as your guardian.

What is a Professional Guardian? A Professional Guardian completes a course approved by the Statewide Public Guardianship Office (SPGO) and must pass an exam. Non-attorney Guardians must also post a bond and be represented by an attorney. Professional Guardians register each year with the SPGO and must take a minimum of 16 hours of continuing education every two calendar years. They are appointed by the court when no family members or friends are available or willing to serve.

What is a Public Guardian? A Public Guardian may be appointed by the court when there are no family members or friends able or willing to act as Guardian, and the incapacitated person does not have sufficient assets to pay a Professional Guardian.

Authored by Carolyn Norton
Reviewed by Carolyn Landon