How “Guardian of the Person” is Defined - Commentary to Florida Trust Code

Legal Commentary on the Definition of “Guardian of the Person”

Fla. Stat. § 736.0103(11) defines the term “guardian of the person.” The text of the subsection reads:

“Guardian of the person” means a person appointed by the court to make decisions regarding the support, care, education, health, and welfare of a minor or an incapacitated adult. The term does not include a guardian ad litem.

Although chapter 744 of the Florida Statutes is not explicitly mentioned in the above definition, there can be no doubt that being “appointed by the court” means appointment under chapter 744. Interestingly, chapter 744 does not define the term “guardian of the person,” despite being the guardianship chapter of the Florida Statutes.

The only place in the Florida Trust Code that the term “guardian of the person” is used (other than the definition above) is in Fla. Stat. § 736.0816(21), where trustees are given the authority to make distributions to a beneficiary’s guardian of the person instead of the beneficiary when the beneficiary is under a legal disability or incapacitated.

A guardian of the person makes decisions regarding “the support, care, education, health, and welfare” of the ward, whereas a guardian of the property makes decisions regarding the assets owned by the ward.

History of Definition of “Guardian of the Person”

The term “guardian of the person” has been consistently defined since the Florida Trust Code took effect in 2007. However, the placement of the definition has changed multiple times. For example, the term was originally a part of Fla. Stat. § 736.0103(8). At that time, Fla. Stat. § 736.0103(11) defined the term “jurisdiction.”

The definition used by the Florida Trust Code was taken from the Uniform Trust Code’s definition of “guardian,” with only minor revisions made.

This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.