Guardianship
What it is a guardian?
A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. After adjudication, the subject of the guardianship is termed a "ward."
When is a guardian required?
- For Minors: Florida law requires the court to appoint a guardian for minors in circumstances where the parents die or become incapacitated, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount allowed by statute.
- For Adults: Adult guardianship is the process by which the court finds an individual's ability to make decisions so impaired that the court gives the right to make decisions to another person. Guardianship is only warranted when no less restrictive alternative—such as durable power of attorney, trust, health care surrogate or proxy, or other form of pre-need directive—is found by the court to be appropriate and available.
Types of Guardianship:
Florida law allows both voluntary and involuntary guardianships.
- A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily petitions for the appointment.
- An involuntary guardianship is when the court appoints a guardian for someone judicially determined to be incapacitated. This means the court found that the person lacks the capacity to handle at least some of his or her property or to meet at least some essential health and safety requirements of the person.
Legislative intent requires the least restrictive form of guardianship. Accordingly, Florida law provides for limited as well as plenary adult guardianship.
- A limited guardianship is appropriate if the court finds the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property; and if the individual does not have pre-planned, written instructions for all aspects of his or her life.
- A plenary guardian is a person appointed by the court to exercise all delegable legal rights and powers of the adult ward after the court makes a finding of incapacity. Wards in plenary guardianships are, by definition, unable to care for themselves.
Appointing and Holding Guardians Accountable
One of the court's duties is to appoint a guardian. Any adult resident of Florida, related or unrelated to the potential ward, can serve as a guardian unless they are a convicted felon or are found not to be able to carry out the duties of a guardian. Institutions like non-profit corporations and individuals who are professional or publican guardians may also serve. Sometimes the incapacitated person has pre-determined their guardian prior to becoming incapacitated.
Whether one is dealing with a minor whose assets must be managed by another or an adult with a disability who is not capable of making decisions for him/herself, when the court removes an individual's rights to order his or her own affairs there is an accompanying duty to protect the individual. All adult and minor guardianships are subject to court oversight.
The legal authority for guardianship in Florida is found in Chapter 744, Florida Statutes. The court rules that control the relationships among the court, the ward, the guardian, and the attorney are found in Probate Rules, Florida Rules of Court
. Together, these statutes and rules describe the duties and obligations of guardians and attorneys, as well as the court, to ensure that they act in the best interests of the ward, minor, or person who is alleged incapacitated.
If a guardian is found to have abused or neglected their duties, they may be dismissed by the court.
Note: Please note that the information provided in this section is NOT legal advice and should not be construed as such. If you have a question about a specific issue, or do not understand the information presented, please contact an attorney.
Forms
Note: The following forms are sufficient for the matters that are covered by them. The forms may be varied to meet the facts of a particular case. The forms are not intended to be part of the rules and are provided for convenience only.
Providing these forms is not legal advice. If you have a question about a specific form, or do not understand the information presented, please contact your county clerk's office, any local legal aid office, or an attorney.
Petition to Determine Incapacity | 5.901
Petition and Order of Guardian | 5.902 | Form
Letters of Guardianship | 5.903 | Forms A - B
- (a) Letters of Guardianship of the Person
RTF / PDF - (b) Letters of Guardianship of the Property
RTF / PDF
Guardianship Plan | 5.904 | Forms A - E
- (a) Forms for Initial and Annual Guardianship Plans
RTF / PDF - (b) Annual Guardianship Plan for Minor
RTF / PDF - (c) Initial Guardianship Plan for Adult
RTF / PDF - (d) Annual Guardianship Plan for Adult
RTF / PDF - (e) Physician's Report
RTF / PDF
Petition, Notice, and Order for Appointment | 5.905 | Forms A - C
- (a) Form for Petition, Notice, and Order for Appointment of Guardian Advocate of the Person
RTF / PDF - (b) Notice
RTF / PDF - (c) Order
RTF / PDF
Guardian Advocacy | 5.906 | Form
Inventory | 5.910 | Form
Injunction for Protection Against Exploitation of a Vulnerable Adult | 5.920| Form
Resources
Guardianship resources may be found on Florida's Working Interdisciplinary Network of Guardianship Stakeholders (WINGS) website.