In this article, we’ll break down the following:
- Types of Guardianship in Florida
- The Guardianship Process
- Alternatives to Guardianship
- Legal Rights of the Ward
- Rights and Responsibilities of Guardians
- Restoring The Ward’s Rights
- Case Study
Watching a loved one lose their independence due to deteriorating mental faculties or physical illness can take a toll on your emotional well-being.
There’s always the fear for their safety or that some unscrupulous person may take advantage of them since they can no longer manage their affairs. A court-appointed guardian may be the solution to caring for and protecting your loved one and their assets.
Florida has two types of guardianships, (plenary and limited – see below), which are distinguished by the types of decisions the guardian is empowered to make on the ward’s behalf.
Guardianships are broken down into further two-subsets:
- Guardianship of the person gives the guardian the authority to make decisions over the personal and legal interests of the ward; and
- Guardianship of the property gives the guardian the fiduciary authority to make decisions over the ward’s property and assets.
Types of Guardianship in Florida
Florida Statutes Section 744 defines two types of adult guardianship: Plenary and limited.
Plenary guardianship gives the guardian total personal and fiduciary control over the ward’s decisions. It extends over the ward’s person, their property, or both and is only granted by the court if the ward is completely incapacitated. A plenary guardian is responsible for the following:
- Assuming complete fiduciary control over property and assets belonging to the ward and ensuring that the ward’s social and health care needs are met appropriately;
- Preparing and filing with the court the necessary reports, such as details of the ward’s healthcare, medical, mental, and social conditions, records of all transactions involving the ward’s assets and real property, and detailed inventories of the ward’s assets and property.
- Assuming complete responsibility for those rights belonging to the ward that can be delegated, such as the right to manage real property, file insurance claims, defend and bring lawsuits, etc. Rights that cannot be delegated to the guardian include the right to marry or vote.
- Consulting with an attorney to ensure they are meeting the duties and responsibilities required of them by Florida law.
Limited guardianship is—limited. Unlike plenary guardianship, the guardian is only allowed to make certain decisions on behalf of the ward. Limited guardianship can further be divided into two subsets: Guardianship of the person and guardianship of the property.
An individual appointed as guardian of the person can make decisions on the ward’s behalf involving matters such as the place of residence and healthcare.
On the other hand, a person appointed as guardian of the property can make decisions involving the ownership and management of the ward’s assets and real property.
A court may appoint a limited guardian if it finds the ward capable of doing some but not all the tasks and activities required to care for themselves or their assets. This is usually the case if they did not provide prior written instructions on managing their affairs in the event of their total or partial incapacity.
Florida Statutes Section 744.3031 allows an individual to file a petition with the court for emergency guardianship shortly after filing the Petition to Determine Incapacity.
Emergency guardianship is sought in cases where the safety, physical, or mental health of the alleged incapacitated person (AIP) appears to be in imminent danger. It can also be sought if the petitioner deems the AIP’s property in danger of loss, misappropriation, or wastage unless immediate remedial measures are taken.
Like the usual form of guardianship, the court must appoint a temporary emergency guardian and define the scope of their duties and responsibilities to the ward until the Petition to Determine Incapacity is heard and determined.
Emergency guardianship is granted for 90 days only but may be extended for an additional 90 if the petitioner can prove that the emergency conditions persist.
After the 90 days emergency guardianship period, the guardian must file a report with the court showing an accounting and inventory of the ward’s property and assets if the guardianship was over the property.
If the guardianship was over the person, the guardian must submit a report with information about the ward’s medical, mental, and social status and the progress of any rehabilitative care the ward has undergone.
While the court can grant both powers to the same person, it is not uncommon for two different people to be appointed guardians, with one being designated guardian of the person and the other guardian of the property.
In this scenario, the two individuals would be considered co-guardians. They would need to work collaboratively in the decision-making process to ensure they act in the ward’s best interest.
Under Florida Statutes Section 393.12, the court may appoint an individual to represent a person with a developmental disability. This representative is referred to as a guardian advocate. A developmental disability, as defined by the statute, is a disorder or syndrome that results in an individual’s intellectual disability, which manifests in them before the age of 18 and is expected to continue indefinitely.
Guardian advocacy differs from traditional guardianship in that it addresses developmental disability as opposed to mental incapacity. Florida Statutes 744.102(11)
A court may appoint a guardian advocate for an individual with a developmental disability if it finds the person lacking the decision-making capability to do some, but not all, of the tasks required to care for themselves or their property. Unlike traditional court-ordained guardianship processes, appointing a guardian advocate doesn’t require adjudication of incapacity.
The Guardianship Process in Florida
Here’s a brief overview of the guardianship process in Florida.
1. Initiating the Guardianship Proceedings
Any individual aged 18 years or older, of sound mind, and who resides in Florida may file a Petition to Determine Incapacity to initiate guardianship proceedings with the court. The petitioner must provide a valid reason to justify why they believe the AIP to be incapacitated.
2. Role of the Court and Evaluation Process
The court will then appoint an examining committee comprising three members to evaluate the AIP’s competency and report their findings to the court. Their assessment will include a series of medical, psychological, physical, and functional evaluations to determine the extent (if any) of the AIP’s alleged incapacity.
3. Selection and Appointment of the Guardian
The court will review the examining committee’s recommendations and explore the possibility of less restrictive alternatives to guardianship. If no alternative adequately addresses the AIP’s incapacity, the court will select and propose a guardian.
Non-professional guardians may be required to submit to background checks. Professional guardians, public guardians, and other individuals with a fiduciary responsibility to the ward must submit to a complete background check before the court can issue them with letters of guardianship.
4. Reporting and Monitoring Requirements
Within 60 days of their appointment, the newly-appointed guardian of the person is legally required to submit to the court a detailed inventory (Initial Inventory) of the ward’s debts and assets. They must also submit the Initial Plan outlining an appropriate strategy for the ward’s personal, mental, and medical care and residential placement.
One year after their appointment and every year after that, the guardian must submit an Annual Plan and Annual Accounting report to update the court on the ward’s well-being, financial transactions, and any other pertinent information that might be relevant to the court.
Alternatives to Guardianship
Guardianship is an arduous process. It strips the ward of the ability to exercise their rights without limitation. It removes the ward’s personal and legal rights and delegates them to the guardian, who is then granted the legal authority to exercise those rights partially or fully.
For this reason, the court always tries to explore less restrictive alternatives to guardianship that allow the AIP to retain most of their rights. Here are some of those avenues:
Power of Attorney
A power of attorney is a legal document that authorizes another person to act as the signer’s agent. Depending on the language used in the document, a power of attorney can give the agent broad or limited decision-making power.
A general power of attorney lasts until the signer’s revocation, incapacitation, or death. On the other hand, a durable power of attorney lasts beyond the signer’s incapacitation, making it a useful alternative to guardianship.
A healthcare surrogate is an individual named in a written legal document authorized to make medical decisions on behalf of the signer in the event of their incapacitation. The healthcare surrogate only becomes valid after a physician determines that the signer is incapacitated.
Healthcare surrogates are authorized to make medical decisions and apply for government benefits on the signer’s behalf but are prohibited from making fiduciary decisions. Healthcare surrogacy is frequently used together with a living will to avoid going the guardianship route.
Living Will and Advance Directives
Florida Statutes Section 765 gives every adult in the state the right of self-determination with regard to decisions involving their health. This includes the right to refuse medical treatment.
An advance directive is a witnessed document or an oral statement in which an individual lists their health decisions or appoints someone to make their intentions known to relevant parties.
A living will is a type of advance directive and is a legal document outlining a person’s care preferences if they become incapacitated and, therefore, unable to make medical decisions at that point. To be considered valid, this document must be signed, dated, and witnessed by two or more people, at least one of whom cannot be a spouse or family.
Legal Rights of the Ward
Pursuant to the provisions of Florida Statutes Section 744.3215, the rights of individuals who have been determined to be incapacitated include, but are not limited to, the following:
- To have an annual review of the guardianship plan and report
- To review the need for guardianship continually
- To have their rights restored at the earliest possible time
- To be treated with dignity and respect and protected from exploitation and neglect
- To be as independent as possible, including honoring their preferences for their lifestyle and place of residence
- To be suitably educated
- To receive prudent financial management of their assets and be informed on how those assets are being managed if the guardianship is for property
- To privacy
The ward also has the right to legal representation and may choose their attorney to protect their interests and rights. The ward, through their attorney, can contest guardianship by filing a petition for the appointment of an alternate guardian or the removal of the guardianship entirely.
Rights and Responsibilities of Guardians
The duties of guardians in Florida depend on whether they are a guardian of the person, a guardian of the property, or a guardian of the person and property. A guardian of the person is legally obligated to develop and implement a guardianship plan, which must be submitted to the court within 60 days of receiving the letters of guardianship and every year after that.
The plan provides a detailed strategy for the ward’s personal, medical, mental, and social care, including where they will live, who will be responsible for their day-to-day personal and health care, and their social interactions.
A guardian of the property is responsible for the management and protection of the ward’s assets. They must also file an initial report with the court within 60 days of their guardianship appointment, including a detailed inventory of the ward’s assets and a plan for managing them.
Every year after that, the guardian of the property must file an Annual Accounting report showing an accurate and complete account of all transactions involving the ward’s assets.
Guardians have a duty to maintain open communication with the ward and their families. They are expected to always act in the ward’s best interests to protect their rights and dignity as much as possible. If the ward regains capacity, the guardian must notify the court to restore one or more of their previously removed rights.
Restoring The Ward’s Rights
Pursuant to Florida Statutes Section 744.464, any interested party, including the ward, can, through their attorney, file a suggestion of capacity. A suggestion of capacity seeks to restore all or some of a ward’s rights which were removed from the ward due to the ward being currently capable of exercising some or all of the rights which were removed.
The suggestion of capacity must indicate that the ward has regained capacity and can now exercise all or some of the previously removed rights. The court will then require the ward to undergo a medical evaluation to determine whether full or partial restoration of their rights is appropriate.
If the court is satisfied with the outcome of the medical evaluation and no objections have been filed, it will grant an order to restore capacity. The guardianship will be terminated if the order restores the ward to full capacity.
The ward can also file a petition for modification and propose a successor guardian to assume all or some of the ward’s legal rights and responsibilities.
Guardianship Case Study – A Formal Hearing is Required Before an Emergency Temporary Guardianship is Granted
The Florida Second District of Appeal reversed a trial court’s decision to grant a petition for an emergency temporary guardianship without first holding a formal hearing.
The petitioner, the ward’s longtime life partner, stated that the ward had Alzheimer’s disease and could not make decisions for herself. She further alleged that the ward’s niece had taken her ailing aunt out of state and would not allow the petitioner to speak with her.
The presiding judge granted an ex parte order granting the petitioner emergency temporary guardianship over the ward without providing legal notice to the ward and interested parties or even conducting a formal evidentiary hearing.
The appeals court found the trial judge’s actions inappropriate and reversed the lower court’s decision. Covey v. Shaffer, 277 So. 3d 694 (Fla. Dist. Ct. App. 2019)
There are generally two principal types of guardianship available in Florida: Plenary and limited. The difference between the two comes down to the scope of control granted to the guardian.
A plenary guardian has total control over the ward’s person and property. A limited guardian can only make a limited number of decisions on the ward’s behalf.
Securing guardianship for adults requires proactive planning. We can help with that. Please feel free to get in touch with us for legal advice.
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, including claims that a guardian stole from the ward and/or denied family members access to the ward.
A Plantation guardianship attorney should help you understand your legal rights and the liabilities you’ll assume if 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.