Guardianship is a legal process used when a person is deemed unable to manage their own affairs, resulting in the transfer of certain rights to another person who will act in the incapacitated individual’s best interests. This step may become necessary when someone is physically or mentally incapable of caring for themselves or handling their responsibilities. Guardianship is typically a last resort, only considered when the individual is unable to make decisions on their own.
Often, guardianship is needed in cases where family members are caring for someone with dementia or other cognitive impairments. The primary goal is to protect vulnerable individuals and ensure their well-being. These situations can be sensitive, often involving complex family dynamics and emotional challenges.
Guardianship may also be required when a person has not set up key legal documents like a power of attorney or healthcare surrogate, or when those documents no longer meet their needs. It can also be necessary for individuals born with developmental disabilities or in certain cases involving minors.
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We are happy to meet with you either by phone or over zoom if you are not in the Gainesville area. Guardianships do not require in person conversations with a law firm; we represent clients from all across the state of Florida.
A guardian is a person or an entity that is appointed by the court to act for and assist a person who has been deemed unable to manage their own affairs (often referred to in court as a “ward”) in matters of personal care, property, or both. There are several different types of guardians, all of which have a different scope of power and responsibilities to best fit the circumstances of their ward. There are even professional guardians!
A guardian can be any competent adult resident of Florida, unless that person has:
been convicted of a felony;
been judicially determined to have committed abuse, abandonment, or neglect against a child;
has been found guilty, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.04 or similar statute of another jurisdiction;
or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian.
A person can be appointed as guardian whether related or unrelated to the ward. A nonresident of Florida may also serve as a guardian if they are directly related to the ward. Even an entity, such as a nonprofit organization, can hold the title of guardian.
The court will ultimately approve the guardian and require that a training course be completed by the guardian within four (4) months of appointment. Additionally, Florida Probate Rules require that every guardian be represented by an attorney barred in the state of Florida.
To begin the guardianship process and have a guardian appointed, a petition (called a “Petition for Incapacity”) must be filed with the court to determine the incapacity of the person who is believed to need a guardian (referred to as an “AIP,” which stands for an “alleged incapacitated person”). The person filing the petition (referred to as the “petitioner”) must be able to attest to why the AIP may be incapacitated. Once the petition is filed, the court will appoint an examining committee to conduct an evaluation and report back to the court. An attorney will also be appointed to represent the AIP.
Next, the court will hold a hearing to review the reports of the examining committee. The examining committee will typically consist of three members, including a licensed physician and/or psychiatrist. The examining committee will conduct any evaluations deemed appropriate, and will ultimately submit reports to the court which include a diagnosis, prognosis, and a recommended course of treatment.
The court will review all documents provided by the examining committee and make a determination as to whether the AIP is incapacitated. If the AIP is deemed incapacitated, the court will then determine if there is a less restrictive alternative to guardianship. If the court determines that the AIP is incapacitated and that there are no less restrictive alternatives, the court will then appoint a guardian and issue “Letters of Guardianship.” The type of guardian required (and therefore appointed) will be expressly specified by the court at this time.
A guardianship can sometimes be voluntary. A competent person in need of assurance may voluntarily opt for a form of limited guardianship. However, more often than not a guardianship is involuntary in the sense that a court can appoint a guardian even if the ward does not want one. Once a person is adjudicated incapacitated, the court can appoint a guardianship regardless of the ward’s wishes.
While most things involving the courts tend to be a slow process, having a guardian appointed will typically take thirty (30) days or less. The court has five (5) days from the date that the Petition for Incapacity is filed to appoint the AIP with an attorney, and order an examining committee to conduct an evaluation. All reports must be provided to the court within fifteen (15) days of the examining committee’s appointment. From there, the court will schedule a hearing to be held within fourteen (14) days after receiving said reports. It is at this hearing that a guardian will then be appointed, or the Petition for Incapacity will be denied.
Guardianship typically lasts until the court determines that it is no longer necessary, often due to the ward regaining capacity or reaching a specific age in the case of minors.
A guardianship is only appropriate in extreme cases, and should be considered only as a last resort! A guardianship is not necessary for every incapacitated person, only those who lack support mechanisms to overcome their incapacity. In the event that all other support mechanisms to protect an incapacitated person have been considered and/or exhausted, a guardianship is a safe and effective way to help those who need the assistance when the following factors are at play:
Danger to Self
Financial Danger
Wrongful Fiduciaries and/or Caregivers
Oftentimes, guardianships are appropriate for elderly persons with dementia or Alzheimer’s. Any person with cognitive impairments or developmental disabilities may require a guardian as well, if the impairment(s) causes the person to be physically or mentally incapable of caring for themselves or handling their responsibilities. Certain minors (especially those in the foster care system) may require a guardian as well.
The circuit court’s probate division has exclusive original jurisdiction for proceedings for the determination of incapacity and guardianship proceedings. Jurisdiction to appoint a guardian of an AIP residing in Florida is vested in both the court of the county in which the AIP resides, and in the court in the county in which the AIP may be found. If the AIP is not a Florida resident, venue is appropriate in the county in which the AIP owns property. If the AIP is not a Florida resident and does not own property in Florida, venue lies in the county where any creditors reside.
No, guardianship and power of attorney are different. A power of attorney is a voluntary agreement where an individual designates another person to make decisions on their behalf, while guardianship is a court-appointed arrangement for individuals unable to make decisions due to incapacity.
No. Britney Spears was under a conservatorship, which is more limited than a guardianship. While both a guardianship and conservatorship can be put in place to protect a loved one (specifically by ensuring that finances and healthcare matters are properly handled), a guardianship provides for an even wider variety of decisions on behalf of the ward.
While Ms. Spears was under a less restrictive “ship,” her story may serve as an example of the potential abuse that this level of power over another can open the door to without proper ethical considerations and court oversight. A guardianship causes the ward to lose their rights, independence, and say-so. Decisions such as living arrangements, purchases, health care, and financial matters are taken out of the ward’s hands. While a guardianship is reserved for circumstances where this is necessary, that does not diminish the experience of the ward. It can be a traumatic experience for the ward, and for family members. Accordingly, a guardianship is not an endeavor that should be taken lightly.
Yes, a guardianship can be contested by interested parties (such as family members or friends) who believe the proposed guardian is unsuitable or that the individual does not require a guardian.
Yes, a guardian can be removed by the court if they fail to fulfill their duties, mismanage the ward’s assets, or act against the ward’s best interests. Interested parties can petition for the guardian’s removal.
PTM Trust and Estate Law is happy to answer your questions about guardianship. Please call 352-554-5576 or contact us online to schedule a free consultation. If you do not live near Gainesville, then we will be happy to schedule a free phone meeting instead. We help clients all throughout the state of Florida.
