Guardianship is the legal procedure of appointing someone to take over the decision-making ability of an incapacitated minor, senior, or person with disabilities. The laws surrounding guardianship differ from state to state, and in Florida, there are various types of guardianships with state-specific requirements and processes. In this article, we explain these types of guardianships so that you and your loved one can have some support in navigating.
What are the types of guardianship available in Florida?
There are both voluntary and involuntary guardianships in Florida. A voluntary guardianship is most commonly for adults who are sufficiently mentally competent to make decisions regarding their person, but incapable of managing their own estates, and request the court to appoint a guardian to manage some or all of their property. In this case, a licensed physician must specify that they have examined the individual and that the individual, or ward, is able to understand the nature of the guardianship. Voluntary guardianship may be terminated at any time by the ward by filing a notice with the court.
Emergency Temporary Guardianship is a type of involuntary guardianship that can be appointed by the court if it believes an individual is in immediate danger, or if the individual’s property is at risk, with sufficient evidence. The court must specifically list the duties of the Emergency Temporary Guardian in a written order, and this type of guardianship expires 90 days after the guardian is appointed. This can be extended for another 90 days if evidence is provided that the emergency situation has not been fixed.
Florida courts can also appoint a preneed guardian if the ward requests one and is later found to be incapable of managing their affairs. A preneed guardian must be mutually agreed upon by the individual and family members, or by the lawyer working on behalf of the individual.
Lastly, Florida provides for limited and plenary adult guardianship, which can be viewed as full guardianship over all decisions for a ward who, by definition, is unable to care for themselves. A plenary guardian can exercise all delegable legal rights and powers of the adult ward, from the decision to marry, vote, and enter contracts, to having a driver’s license and beyond.
Florida-Specific Guardian Advocates
Under Florida Statute §393.12, a court-appointed guardian advocate can make decisions on behalf of an individual with a developmental disability, even when a court has not determined the individual to be incapacitated. A person is considered to have a developmental disability if they have been diagnosed with an intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, or Prader-Willi syndrome. Only the specific rights the ward cannot manage are removed from them through this type of Guardian Advocacy.
Under Florida Statute §394.4598, an administrator of a facility can petition for a guardian advocate if a psychiatrist has deemed the individual incapable of consenting to mental health treatment and does not already have a guardian – with sufficient evidence. To prevent conflict of interest, guardian advocates under this statute cannot work or be associated with the mental treatment facility in any way, nor be someone who may put the ward in danger. This is not a permanent position, and the guardian advocate will be released from their duties when the patient is discharged from the facility.
Who is required to have guardianship under Florida law?
Under certain circumstances, Florida law requires that a guardian be appointed for a minor child if their parents have passed or have become incapacitated. If a minor child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount allowed by statute, he or she may be required to have a guardian.
Adult guardianship is only required in Florida when the court finds an individual incapable of making their own decisions. Note that this is only warranted when no other options are available—such as a suitable family member, a power of attorney, or a trust. Florida law requires the use of the least restrictive alternative whenever possible, and involuntary guardianship is viewed as a last resort.
The Process of Filing for Guardianship in Florida
In order for a guardian to be appointed, one must file a petition with the local court where the alleged incapacitated person resides. This entire process can take up to 90 days. It is also important to note that the assistance of an attorney is required in Florida to file for guardianship. The court can appoint an attorney to represent the person alleged to be incapacitated, but the alleged can also select their own attorney to represent them.
After the initial petition is filed, the court will appoint an “examining committee” of three members within five days to assess the alleged incapacitated person. The examination of the alleged incapacitated person normally includes a physical examination, a mental health examination, and a functional assessment. At least one member of the committee must be trained about the ward, and each member of the committee must submit a report of findings to the court within 30 days.
If the majority of the examining committee members conclude that the alleged ward is not incapacitated, the petition will be dismissed. On the other hand, if the majority finds them to be incapacitated, the court will schedule a hearing to determine whether the person is partially or totally incapacitated. Depending on the level of the ward’s incapacity, the court may appoint partial or full guardianship over the person, property, or both.
Florida Guardianship Forms
FLcourts.org provides a comprehensive list of forms needed for guardianship in Florida. They include:
- Petition to Determine Incapacity | 5.901
- Petition and Order of Guardian | 5.902
- Letters of Guardianship | 5.903 | Forms A – B
- Guardianship Plan | 5.904 | Forms A – E
- Petition, Notice, and Order for Appointment | 5.905 | Forms A – C
- Guardian Advocacy | 5.906 | Form
- Letters of Guardian Advocacy
- Inventory | 5.910 | Form
- Injunction for Protection Against Exploitation of a Vulnerable Adult | 5.920
If you believe that you or your loved one may need a guardian, or want to know how case managers work with guardians, read our article on Understanding Guardianship or contact us today.