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What Are the Requirements for Guardianship in Florida?

What Are the Requirements for Guardianship in Florida?

In this article, we’ll break down the following:

If a loved one can no longer care for themselves or manage their financial or legal affairs, the solution might lie in applying for guardianship to protect them and their assets. However, courts don’t easily grant guardianship.

It is often the last resort when other less restrictive alternatives prove inadequate and is a long, complex process with several pre- and post-petition requirements.

Understanding these requirements will increase your chances of getting a court to appoint a guardian for your loved one, so you can protect their interests and well-being. Here’s everything you need to know.

Understanding Guardianship in Florida

Guardianship refers to the legal proceeding in which a Florida circuit court appoints a legal representative (the guardian) to exercise the legal rights of a minor or an incapacitated adult (the ward).

The process of appointing a guardian is governed by Florida Statutes, Chapter 744. Guardianship is always the last resort when less restrictive measures of interventions (such as proxy, trust, power of attorney, etc.) are inadequate.

To keep the guardian in check and ensure they are acting lawfully, the court requires them to submit periodic reports to the court.

These reports allow the court to monitor the actions of the guardian and oversee the affairs of the ward. If the guardian fails to comply with any of the obligations required, they must appear before the court to explain their non-compliance.

Types of Guardianship Available in Florida

Depending on the court’s determination based on the ward’s specific needs and best interests, a judge may establish one of three types of guardianship. It is worth noting that in Florida, guardianship can either be plenary or limited, referring to the scope of rights delegated to the guardian.

1. Guardian of the Person

The individual appointed guardian of the person has the legal authority to exercise the personal rights the court has removed from the ward and delegated to them. These rights may include some or all of the following, depending on the ward’s level of incapacity:

  • The right to apply for government benefits
  • The right to consent to health treatment of a mental or medical nature
  • The right to contract
  • The right to determine their place of residence
  • The right to dispose of or gift property
  • The right to make decisions concerning their social environment
  • The right to manage property
  • The right to sue and defend lawsuits

Pursuant to Florida Statutes Section 744.362, The individual appointed guardian of the person is legally mandated to file the Initial Plan and the Annual Plan reports with the court.

2. Guardian of the Property

The individual appointed guardian of the property also has the legal authority to exercise the rights the court has removed from the ward and delegated to them.

However, this individual does not have the right to dispose of, transfer, donate, or mortgage any property belonging to the ward before seeking approval from the court. The court has broad discretion to determine whether any of the transactions sought for approval are in the ward’s best interests.

Once the court issues the guardian with letters of guardianship, the ward’s property (homes, vehicles, bank accounts, investments accounts, etc.) may be re-titled in the guardianship’s name and not the guardian’s name only.

For instance, if Jane Doe was appointed guardian for John Smith, a property deed may be re-titled to read “Jane Doe guardian for John Smith,” as opposed to the deed being in Jane Doe’s name only.

The individual appointed guardian of the property is legally mandated to file an Initial Inventory and Annual Accounting report with the court.

3. Guardian of the Person and Property

The individual appointed guardian of the person and property has the legal authority to exercise the personal and property rights the court has removed from the ward and delegated to them. The guardian is responsible for filing the relevant Initial and Annual reports with the court.

Guardian of a Minor

If a minor receives a settlement amounting to $50,000 or more in a wrongful death, property damage, or personal injury claim, the law requires a guardian of the property to be appointed.

The court may appoint a next of kin, such as a parent or sibling or anyone else interested in the welfare of the minor, to assume the role of guardianship. Florida Statutes Section 744.3025

Once the minor reaches the age of majority, the guardianship will effectively be terminated, even if the appointed guardian believes that the minor lacks the maturity to responsibly manage the assets turned over to them.

“Guardianship of a minor” should not be confused with “custody of a minor.” Guardianship defines the legal relationship between a guardian and a minor. Custody refers to a parent caring for their child.

Importance of Guardianship

Guardianship is important for those who are unable to make decisions on their own. The process protects and exercises the legal rights of individuals with functional limitations that make it impossible to make decisions independently and haven’t made plans for this eventuality.

People who may need guardianship include individuals with Alzheimer’s disease, dementia, a chronic illness, a developmental disability, or any other condition that limits their ability to function normally.

Before the court can establish a guardianship, it must be proven that the alleged incapacitated person (AIP) lacks capacity.

Requirements for Guardianship in Florida

Here are the requirements for the appointment of a guardian in Florida.

Age and Residency Requirements

According to Florida Statutes Section 744.309, any resident of the state aged 18 or older and of sound mind can be appointed guardian of a ward. The person filing the petition for guardianship must provide a valid justification for why they believe the AIP may be incapacitated.

A non-resident of Florida may also be appointed guardian provided they are directly related to the ward or are the adoptive child or parent of the ward.

Depending on the circumstances of the case, the court can appoint a professional guardian of the person, guardian of the property, or guardian of the person and property. In other instances, a corporate guardian, such as a brokerage firm or bank, may be appointed guardian of the property.

Background Checks and Qualifications

Potential guardians must be fit for their role. Florida Statutes prohibit individuals with a felony conviction, found guilty of child abuse, neglect, abandonment, or other specific offenses, regardless of adjudication, from being appointed guardians.

Additionally, individuals with illnesses or conditions that make it difficult or impossible to perform their guardianship duties cannot be appointed guardians.

If the court deems it necessary, non-professional guardians may be required to submit to background checks. This may include a credit and/or criminal history check. In situations where a criminal history background check is required, the court will consider those results before appointing the guardian.

Professional guardians, public guardians, and all other individuals or entities with a fiduciary responsibility to the ward must submit to complete background checks before they can be appointed guardians.

Special Skills Required for Guardianship

A young woman and her elderly father looking at a laptop screen

Once a guardian is appointed, they are required, by law, to complete a guardianship training course within four months of their appointment.

The instruction course and training program is eight hours long for the guardian of the person, the guardian of the property, and the guardian of the person and property. It is four hours long for the guardian of a minor. There are several listings of these training courses across Florida.

Court Petition and Filing Process

The process for filing for guardianship is as follows:

  1. A “Petition to Determine Incapacity” is filed: Any adult of sound mind may petition the court to seek guardianship of an AIP. An examining committee of three members will then be appointed by the court to evaluate and report on the competency of the AIP. The court will also appoint an attorney to represent the individual for whom guardianship is sought, although they can substitute the court-appointed attorney for their own. Florida Statutes Section 744.331
  2. The court holds a hearing: Once the examining committee concludes its evaluation, the court will convene a hearing to review its reports. If the committee’s findings determine that the AIP is indeed incapacitated, the court will explore less restrictive alternatives to guardianship. The proposed guardian and all interested parties must attend the court proceedings.
  3. The court determines whether to approve the application: If no less restrictive alternative to guardianship exists, the court will deem the AIP incapacitated, appoint an appropriate guardian, and grant them letters of guardianship for the person, the property, or both.

The time it takes from the initial filing of the petition to the court appointing an attorney for the AIP and convening an examining committee is five days. The committee will then have 15 days to evaluate the AIP and report to the court. Once the court receives the report, a hearing will be set within 14 days.

Sixty days from the commencement date of the guardianship, the newly-appointed guardian must submit to the court a detailed inventory of the ward’s debts and assets.

They must also provide the Initial Plan based on the examining committee’s recommendations. The plan must outline the provision for personal, mental, and medical care and the most appropriate residential placement for the ward.

One year after their appointment and every year after that, the guardian is required to submit to the court an annual report detailing the ward’s status, all the financial transactions since the previous reporting period, and any other information that would be relevant to the court.

According to Florida Probate Rules, an individual appointed to act as a guardian must be represented by an attorney licensed to practice in the state.

It is worth noting that the AIP or their family can initiate guardianship in a process called voluntary guardianship. The court can also initiate it in a court-appointed guardianship.

Medical and Psychological Evaluations

As mentioned, the examining committee appointed to evaluate the AIP’s incapacity comprises three members. The first of the three must be a psychiatrist or physician whose field of practice is relevant to the AIP’s condition.

The second and third members must either be a psychiatrist, a psychologist, a physician, a gerontologist, a person with an advanced degree in gerontology, a registered nurse, an advanced practice registered nurse, a licensed social worker, or any other professional with the relevant skills, expertise, education, or training who can offer their opinion to the court.

At least one of the three committee members must have in-depth knowledge of the specific type of incapacity alleged in the filed petition, and all three members must submit their findings in a report to the court.

The committee will conduct a series of examinations, including, but not limited to, a mental health assessment, a physical examination, and a functional evaluation to determine whether the AIP suffers from the alleged incapacity or any other condition that would be sufficient to render them incapacitated.

If at least two of the three examining committee members conclude that the AIP is not incapacitated, the court will dismiss the guardianship petition.

On the other hand, if the committee’s findings reveal that the AIP is unable to exercise certain rights, the court will convene a hearing to determine whether the individual is partially or totally incapacitated, explore less restrictive alternatives to guardianship, and then appoint a guardian if no alternative that adequately addresses the AIP’s incapacity is available.

Medical and psychological evaluations are important to ensure the well-being of the individual in need is protected with regard to their ability to retain their rights without limitation. Remember, guardianship is always the last resort when less restrictive intervention measures prove inadequate.

Guardian Ad Litem and Attorney Requirements

Florida Statutes Section 61.403 defines a guardian ad litem as a court-appointed legal representative of a child and is tasked with protecting their best interests. This individual works as an investigator on behalf of the court to determine the child’s best interests in matters related to relocation, time-sharing, alienation, and parental decision-making or responsibility.

Guardians ad litem are likely experienced family law attorneys with extensive training. Their roles and responsibilities include:

  • Conducting interviews with parents and speaking directly with the child
  • Conducting home visits
  • Speaking to the important people in the child’s life, such as the grandparents, teachers, and therapist
  • Reviewing court files and other important case records
  • Ensuring that the child’s physical, psychological, and emotional well-being are protected when making recommendations to the court based on the factors outlined in Florida Statutes Section 61.13 and 13001

A guardian ad litem attorney ensures that the actions in every proceeding are geared towards being child-sensitive/friendly and solution-oriented as opposed to punitive. They help promote productive communication between all parties, resulting in greater efficiency and improved decision-making, with the child remaining the primary focus.

Factors Considered in Guardianship Decisions

The two key factors courts consider when deciding whether to grant a Petition to Determine Incapacity are the ward’s best interests and if less restrictive alternatives to guardianship exist.

Best Interests of the Ward

Florida Statutes Section 744.309 defines the persons who may be appointed guardians. This individual is compelled, by law, to act in the best interests of the ward and, to that effect, must periodically report to the court to ensure the ward’s needs are being met.

The question then becomes: How does a guardian or court determine the ward’s best interests? Here’s a list of possible standards that can be used to review decisions made on the ward’s behalf:

  • What would the ward have done in that situation?
  • Is the decision contrary to the best interests of the ward?
  • Is the decision best for the ward’s dependents or those closest to them?
  • Does the guardian believe the decision is the best based on their values and experience?
  • Does the judge believe the decision is the best based on their values and experience?

The decisions made by the guardian should always be focused on preserving the ward’s independence, rights, and dignity as much as possible.

Special Cases and Considerations

  • Guardianship for Developmentally Disabled Individuals: A guardian advocate can be appointed for an individual with a developmental disability even if a court hasn’t declared them incapacitated. Individuals with cerebral palsy, Down syndrome, autism, spina bifida, etc., are considered to have developmental disabilities.
  • Guardianship for Seniors with Dementia or Alzheimer’s: A plenary guardian of the person, property, or both can be appointed if an individual becomes incapacitated due to dementia, Alzheimer’s, or any other degenerative brain condition.
  • Guardianship for Minors without Parental Care: If a child receives an insurance payout, proceeds from a lawsuit, or an inheritance due to the death of both parents, a guardian of a minor will be appointed to represent their interests.

Case Study of Adult Guardianship in Florida

Karim Saadeh, a wealthy man in his eighties, met a younger woman after his wife’s death a few years prior. His children were unhappy when they discovered he was loaning her money and took it upon themselves to use their co-signing authority to transfer over a million dollars from his bank accounts.

They also took out significant amounts of money and jewelry from his safe, to which they had the combination. Saadeh reported the matter to the police and, through his lawyer, sent his children a demand letter to return his money and property.

His children “retaliated” by petitioning the courts to declare him incapacitated, and an emergency temporary guardian was appointed in the interim. The court put together two different examining committees to evaluate Saadeh. Both committees unanimously found Saadeh legally competent.

However, while the guardianship proceedings were going on, Saadeh’s children offered him the option of creating a trust and transferring all his earthly property to them. In exchange, they would terminate the guardianship proceedings they had initiated against him.

Feeling backed into a corner, Saadeh agreed and signed the trust agreement. However, once his legal rights were reinstated, he challenged the validity of the trust he had signed, stating that because the temporary guardianship was still in force, he did not have the legal authority or capacity to execute the trust, rendering it void.

The trial court agreed with him and ruled in his favor, declaring the trust invalid and void.  Jasser v. Saadeh, 97 So. 3d 241 (Fla. Dist. Ct. App. 2012)

Final Thoughts

Guardianship is useful when an individual can no longer make decisions independently due to deteriorating mental faculties, illness, or any condition that renders them incapacitated. The guardian advocates on their behalf and acts in their best interests to protect their affairs.

Meeting the requirements for guardianship set forth by Florida law is difficult. Failing to meet them will result in your Petition to Determine Incapacity being denied. You should hire an attorney to represent you through the process to give your loved one the protection they deserve.

Please feel free to get in touch with us for legal advice on your specific case.

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.

An experienced guardianship attorney should help you understand your legal rights, obligations, 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.