Florida Estate Planning Attorney Karen Estry Explains Guardianship

When families face tough decisions about caring for a loved one who can no longer manage their own physical, mental, social, and financial well-being, knowing how to move forward can feel overwhelming. In these situations, Florida guardianship may provide a legal path forward by allowing a trusted individual to make important decisions on behalf of the person in need.

What is Guardianship in Florida?

Florida Minor Guardianship Vs Florida Adult Legal Guardianship

Under Florida law, a minor requires a guardian if their parents die or become incapacitated or if the child receives an inheritance, award from a lawsuit, or insurance payout that exceeds $15,000. [In fact, the Uniform Gifts to Minors Act functions through out the United States to require some form of guardianship for minors should they inherit a significant sum in certain situations.]

For adults, a guardianship is a means of last resort only used when the individual’s decision making is so impaired that less restrictive methods would not adequately protect the individual. The court always seeks to apply the least restrictive guardianship possible.

Types Of Guardianship

A guardianship can be voluntary or involuntary. In a voluntary guardianship the person themselves petitions the court for help. Mental competency does not play a role in this type of guardianship. Conversely, an involuntary guardianship requires the court rules that the person is incapacitated, meaning the person does not have the ability to fully manage their property and/or essential health and safety.

For a Limited Guardianship, the court finds the ward can manage some, but not all, of their care. A limited guardianship will either be a guardianship of the person or a guardianship of property.

Consider Maxine. At 78 years young she swims, enjoys cooking, and manages her medical appointments with ease. However, Maxine believes she is in an online relationship with an 80s idol she was quite fond of as a younger woman. Maxine has sent this impostor significant sums of money. Maxine’s family is concerned she will not be able to afford her home for much longer. No sort of intervention has convinced Maxine that her idol is a scammer. A limited guardianship may be established by a court to protect Maxine. Maxine would remain in her home, manage her medical care, cook, and swim, but her guardian would control Maxine’s finances, protecting her assets.

A Guardian Advocate is a type of limited guardianship for those with developmental disabilities or those receiving mental health treatment, tailored to assist the ward with decision making. A person with down-syndrome or autism may have this type of guardianship.

A Plenary Guardian is empowered by the court to make all decisions for the ward. The guardian controls where the ward lives, makes medical decisions for the ward, and controls the ward’s assets. A person with dementia will eventually need a plenary guardianship.

Emergency Temporary Guardianship is used where there is a need for immediate protection.

How is a Guardian Appointed in Florida

In Florida, a court must establish a guardianship. Establishing a guardianship for an adult differs from the process for a minor. While the section below focuses on an adult guardianship, help on obtaining a guardianship for a minor can be found here. For an adult guardianship in Florida the process is:

1. Filing both a Petition to Determine Incapacity and a Petition for Appointment of Guardian. Florida venue rules require that these petitions be filed in the county in which the potential ward lives.
2. The potential ward receives a physical exam, mental exam, and functional assessment by a committee of three professionals who then vote. Two of the three committee members must find the potential ward incapacitated to move forward to a hearing. If two or more of the committee vote the potential ward is not incapacitated the process ends.
3. At the hearing, the judge will consider all of the evidence and determine:
   
   1. if the potential ward is incapacitated, and
   2. the level of incapacity.

If the judge finds a guardian is needed, a qualified guardian will be appointed. The court considers the wishes of the ward when appointing a guardian. A ward does not always have the capacity at the time of a hearing to convey their wishes to the court. One way to make sure your voice is heard is to create a power of attorney.

The Guardian

Who Can Be a Guardian?

A person is qualified to be a guardian in Florida if they:

• are at least 18, AND
• have full legal capacity, AND
• are a resident of Florida, OR
• a non-Florida resident with a recognized relation to the ward including:
  • blood lineal relationship
  • legally adopted parent or child
  • spouse
  • sibling, aunt, uncle, niece, nephew
• A person cannot be a guardian in Florida if they:
  • are a non-Florida resident without the required family tie, OR
  • are a felon, OR
  • have a history of child abuse, abandonment, or neglect, OR
  • provide substantial business to the ward, OR
  • are a creditor of the ward.

Certain financial corporations, non-profit guardians, health care providers, and for-profit corporate guardians may also be appointed as guardian.

DUTIES OF A GUARDIAN

When selecting the guardian, the court considers the guardian’s ability to manage the ward’s affairs. The court will weigh all the factors and options available when making its decision. Once selected, the guardian must:

• Always act in the best interest of the ward.
• Honor their fiduciary responsibility to the ward, including filing initial reports and annual financial reports.
• Receive eight hours of training.
• Protect and preserve the property of the ward.
• Consider the ward’s expressed desires.
• Maintain the ward’s friend and family connections where safe to do so.
• Not restrict the ward more than necessary.
• Must not move the ward without permission. A guardian may not move the ward from Florida or to a county not adjacent to the ward’s current county without court approval. A move to an adjacent county can be done with notification to the court of the move within 15 days of the move. Thus, if Samuel lives in Altamonte Springs in Seminole County, Samuel’s guardian may not move Samuel to Clearwater without first getting permission from the court for the move. However, Samuel’s guardian may move Samuel to Orlando as long as the guardian sends notice to the court within 15 days of moving Samuel to Orlando.

PRE-NEED GUARDIAN

In some family situations, an individual may want the reassurance that they have chosen who might serve as their guardian if one is needed. This can be done by that individual discussing with the lawyer a document referred to as a pre-need guardian and nominating who should serve in that position. This can provide a great deal of comfort to some aging parents.

Take the Next Step with Confidence

Filing for guardianship in Florida can be an emotional and complicated process. With over two decades of experience in the legal industry, Karen Estry and the team at Karen Estry, P.A. are here to help you move forward with clarity, compassion, and confidence. Call us at (407) 869-0900 or fill out an appointment form to schedule a consultation. We’re ready to help you protect the people who matter most.