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Powers and Duties of Guardian in Florida

Powers and Duties of Guardian in Florida

In this article we’ll break down:


Under Florida’s guardianship statute, guardians are court appointed to administrate the powers and duties for a person unable to care for themselves (otherwise known as the “ward”). These powers and duties can include personal, medical, and financial decisions made for the benefit of the ward.

Guardianship can be created for the person, for the person’s property, or for both (a plenary guardianship). Guardians can be appointed for minors, but they are most often used in cases of incapacitated adults.

The power and duties of a Florida personal representative can be found for the most part in Florida Statutes 744.361-744.462.

Elderly lady receiving personal care

Overview of the Powers and Duties of Guardians

When the court determines that an adult is incapacitated, then it will delegate the ward’s rights to a guardian. This includes the rights to enter into a contract, file a lawsuit, manage property, apply for government benefits, determine where the ward lives, consent to health treatments, and make decisions about the ward’s environment and other financial and health related issues.

Note: The process of appointing a guardian in Florida begins with the filing of a petition to determine incapacity, a petition for appointment of guardian, and an Oath with the clerk of the court.

A judge will then appoint a guardian by issuing letters of guardianship which is the document granting the guardian full power to exercise all power or specifically stated powers and duties pertaining to the ward.

Appointment of a Guardian in Florida

Generally speaking, guardianships are appropriate when other options are not available. Less restrictive options include the use of a durable power of attorney or health proxy. However, these options must be in place before the ward becomes incapacitated.

When these options are not available or in existence, then guardianship is appropriate and necessary.

Note: Guardianships in Florida can be both voluntary and involuntary. The latter means that the court can force someone into guardianship. However, there are several legal requirements that must be met before a guardian is appointed.

Legal Requirements for Appointment

First, in adult guardianship, the court must determine that someone qualifies as a ward in need of a guardian. This means a person is unable to meet their basic needs and/or cannot manage their personal affairs. In many cases, this is due to a medical issue. An example of this is an adult suffering a stroke that damages their brain and leaves them unable to manage their finances.

Second, the court must determine that the person who would serve as guardian is qualified to do so. To do this, the court considers:

  • If the guardian and ward have a personal relationship
  • Unique needs of the ward
  • Abilities of the ward, including their ability to provide their opinion concerning any issues
  • If the guardian can understand and meet the ward’s needs
  • Location of the guardian and ward
  • Guardian’s previous successful experiences acting in a similar role
  • Possible concerns regarding the intent or motive of the guardian (do they have a conflict of interest?)
  • Whether the guardian is available for the period that guardianship is required
  • Opinion of family, friends, and other caretakers of the ward’s need for a guardian

As stated above, the powers and responsibilities of a guardian may vary based on the specific circumstances and needs of the ward.

Young woman working with a healthcare professional

Powers of a Guardian

Guardians have a variety of powers set forth in Florida statutory law, including those related to general decision-making, financial matters, management of property and other assets, and medical care.

Decision-Making Authority for the Ward

Guardians are appointed by the court to make decisions on behalf of the ward. Their decisions must be made in good faith and not in any manner that is contrary to the ward’s best interests. Guardians with special skills should use those skills to the benefit of the ward.

For example, if a guardian is appointed who works or worked as a tax accountant, they should use that experience to prepare the ward’s tax documents. If the guardian has experience working in healthcare, they should use their medical knowledge when making decisions about the health of the ward.

Financial Management Responsibilities

Guardians of property act as fiduciaries for their wards. They are generally permitted to make financial decisions on behalf of the ward based on the specific rights granted to them by the court. They are responsible for managing any property of the ward. This includes:

  • Protecting and preserving the property and investments of the ward
  • Keeping detailed and accurate records of the ward’s property
  • Deliver property back to the ward if and when the guardianship is terminated
  • Deliver property to the personal representative of the ward’s estate
  • Perform all financial duties required by law

In some cases, the court authorizes the guardians to sell, transfer and to take possession of the ward’s property, income, profits, etc., whether they were acquired before or during the guardian’s appointment. These assets are to be used by the guardian to pay debts, taxes, claims, expenses, etc., of the guardian for their care, support, maintenance, and education.

Medical and Healthcare Decisions

Guardianships over the person generally include the ability of the guardian to make medical and healthcare decisions on behalf of the ward. These decisions include:

  • Making and attending doctor’s appointments
  • Paying medical bills
  • Handling health insurance issues
  • Coordinating care with assisted living or nursing homes
  • Applying for public assistance benefits like Medicaid
  • Other medical issues, including medical procedures and treatments

Younger and older woman embracing

Refusal of Medical Treatment

In some cases, a guardian has the responsibility to determine if refusal of medical care is warranted. In some cases, this arrangement was made before the ward was incapacitated. For example, a guardian would refuse medical treatment if the ward had enacted a Do Not Resuscitate order before incapacitation.

If no prior orders exist, the ward may still refuse medical care if it is based on the ward’s wishes regarding medical treatment. A successful refusal requires certificates from the ward’s primary treating physician and two other physicians.

Guardians must exercise great care in the withholding of medical treatment, and they must be able to support their decision to do so with clear and convincing evidence, including satisfying the following conditions:

  • Must be satisfied that the ward wrote or stated their declaration of refusal free of undue influence and that they were competent when doing so
  • Ward has no reasonable chance of recovering competency, allowing them to exercise their right directly
  • Any limitations or conditions expressed in the ward’s declarations have been considered and satisfied

Duties of a Guardian

In addition to the enumerated powers imposed under Florida statutory law, a guardian must fulfill certain duties  to ensure that they act in the best interests of the ward. For example:

Duty of Care and Protection for the Ward

The primary duty of a guardian is the care, protection, and overall well-being of the ward. Each ward is unique and has their own unique needs. However, in general, the duty of care and protection of a ward includes:

  • Considering the expressed desires of the ward to the extent the guardian knows these desires
  • Allowing the ward to maintain contact with family and friends unless the guardian can show that contact is detrimental or harmful
  • Not restricting physical liberties of the ward unless reasonably necessary
  • Assisting the ward in regaining capacity if deemed possible by medical professionals
  • Notifying the court if the guardian believes the ward no longer needs all or any aspect of the guardianship
  • Making provisions for medical, mental, rehabilitative, and personal care services
  • Understanding the risks and benefits of potential healthcare treatments
  • Evaluating medical and healthcare options, financial resources, and desires of the ward
  • Advocating on behalf of the ward in residential and institutional settings and community services
  • Considering all available residential options for the ward

Additionally, a guardian is required to visit their ward at least once each calendar quarter. During this time, the guardian is required to assess:

  • The physical appearance and condition of the ward
  • The appropriateness of the current living arrangement
  • The need for additional and/or continuation of services that support social, education, psychological, health, and other needs
  • The nature and extent of visitation and communication with the ward’s family and friends

Reporting and Record-Keeping Obligations

Guardians must file annual guardianship reports with the court that includes detailed financial and accounting information. Failing to do so can result in sanctions imposed by the court, which can include contempt, removal from the role, and other sanctions.

Compliance With Court Orders and Regulations

Guardians must comply with all court orders, statutes and rules of court procedure. Failing to do so can result in the guardian having to explain their failure to fulfill their duties to the court. If the court determines the explanation is unsatisfactory, it can impose sanctions, including the removal of the guardian from their role.

The role of a guardian is not unlimited. Under the law, there are several restrictions, as well as ongoing evaluation by the court.

Limitations and Restrictions on Guardians

Florida law imposes certain restrictions on guardians. In some cases, guardians can perform certain financial actions only if given specific court approval. All guardianships are subject to court oversight.

Court Oversight and Supervision

The court oversees all guardianships by collecting, providing, and evaluating information about the ward’s property and overall physical and emotional health. This is to ensure the ward’s well-being and protection. This allows the court to meet its legal obligation of keeping the ward’s interests safe and allowing others to trust the judicial process.

Conflicts of Interest and Ethical Considerations

The court must determine if a potential guardian has any conflicts of interest or if there are other ethical considerations when appointing a guardian.

Florida law prohibits the appointment of a guardian if there is a conflict of interest, which is a “real or seeming incompatibility between” their private interests and their public or fiduciary duties as a guardian.

Under no circumstances can the relationship between the ward and guardian be used for the guardian’s private gain other than remuneration of fees and expenses.

Additional Powers and Duties

Florida passed several other enumerated powers appointed to guardians, which can be found here, such as the settlement of claims by or against the guardian.

Case Examples of the Powers and Duties of Guardians in Florida

In the Guardianship of Browning, which is a landmark case in Florida, the court addressed the right of a person to refuse life-prolonging medical procedures. In the case, Estelle Browning’s cousin and guardian asked that the feeding tube placed after Browning’s stroke be removed because of her living will that stated she did not want any life-prolonging procedures.

When the nursing home housing Browning refused based on a lack of a court order, the cousin filed a petition in probate court. The state argued that Browning’s condition was not terminal.

The probate court determined that it was within Browning’s and her guardian’s rights to refuse a feeding tube. The case was appealed and ultimately, the Florida Supreme Court held that a competent person has the constitutional right to choose or refuse medical treatment.

Furthermore, that right extends to all decisions concerning one’s health, and does not depend on whether the person is terminally ill or in a persistent vegetative state, and can be exercised by a person’s guardian.

According to the court, before exercising the incompetent patient’s right to forego medical treatment, the surrogate must satisfy the following conditions:  the surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence and that evidence of the patient’s oral declaration is reliable; surrogate must be assured that patient does not have reasonable probability of recovering competency so that right could be exercised directly by patient;  and surrogate must take care to assure that any limitations or conditions expressed either orally or in written declarations have been carefully considered and satisfied. See In re Guardianship of Browning, 568 So.2d 4 (1990).

In Hudkins v. Hudkins, Keith Hudkins was incapacitated in a car accident. His father Matthew filed a petition to be appointed as the guardian, which would give him full authority over Keith’s person and property. Mother Ladonna objected to the petition, arguing that she should be guardian or share guardianship.

The court determined that Matthew was the best guardian based on his financial stability, established involvement in Keith’s medical care, and his ability to communicate with Keith. The court also found that Ladonna was unfit as alternate or co-guardian due to a history of mental health issues, substance abuse, and domestic violence. See Ladonna Hudkins v. Matthew L. Hudkins, Guardian of the Person and Property of the Ward, Keith L. Hudkins, 5D21-3094 (2023).

In the Guardianship of Daily, a dispute arose over the guardianship of Blanche Daily, an elderly and incompetent woman. Blanche’s nephew filed a petition to remove Blanche’s sister-in-law, who’d served as long-term court-appointed guardian, claiming she’d mismanaged Blanche’s property, neglected her health, and isolated her from the rest of her family. After the trial court initially refused to hear evidence,

According to the court, the petition, which alleged that the elderly incompetent was not receiving adequate care, that her bills were not being paid, that she was not being given sufficient medical care and that she was not receiving needed supervision and basic necessities and which sought removal of the guardian, stated a claim upon which relief could be granted.

The appellate court reversed the trial court’s decision and encouraged the trial judge to recuse himself from further proceedings. See In re Guardianship of Dailey, 402 So.2d 537.

Older and younger woman reviewing documents

Importance of Upholding the Rights and Welfare of Wards

The powers and duties of guardians in Florida include personal, medical, and financial decisions made on behalf of another individual. Guardians must uphold and protect the rights and welfare of their wards.

The most prudent way of doing so, if for a guardian to rely on the guidance of an experienced guardianship attorney. Acting as a guardian is a serious responsibility, and it’s important to ensure that if you are appointed a guardian that you act within the the rules set forth in Florida’s guardianship statute and the related rules of court procedure (Part III of the Probate Rules). After all, the point of Florida’s guardianship law is to ensure that the guardian, the lawyer and the judge act in the best interests of the ward.

Do You Need a Plantation Guardianship Attorney?

In Florida, the court requires that guardians have an attorney of record. The good news about having a guardianship attorney by your side is that it can help you better advocate for the adult or child in your care and avoid many of the issues that arise on a daily basis.

As an experienced Plantation guardianship attorney, Larry Schott will help you understand your duties and responsibilities, and liabilities, if a guardianship is granted.

If you’re looking for the guidance and support of a lawyer to help you with your guardianship case, contact us today or give us a call at (954) 880-1302 for a free case evaluation. We’ll listen to your case and explain your rights.