GUARDIANSHIP IN FLORIDA
The Jacksonville, Florida guardianship lawyers and attorneys associated with the Cramer Law Center, P.L., are pleased to provide general information about the guardianship process in Florida.
WHAT IS A GUARDIANSHIP?
A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person.
WHAT IS A GUARDIAN?
A guardian is an individual or institution such as a bank trust department appointed by the court to care for an incapacitated person called a “ward” or for the ward’s assets.
HOW IS A PERSON DETERMINED TO BE INCAPACITATED?
Any competent adult may file with the court a petition to determine another person’s incapacity setting forth the factual information upon which they base their belief that the person is incapacitated. The court then appoints an examining committee of two professionals, usually a psychologist, a physician, and a skilled lay person, such as a social worker, to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing.
In Duval County, this process generally takes about 30 days. If critical decisions must be made sooner, an emergency temporary guardianship can be sought. In Duval County, it often is possible to establish an emergency temporary guardianship within one week.
WHO MAY SERVE AS GUARDIAN?
Any competent adult resident of Florida can serve as a guardian. A close relative of the ward who does not live in Florida may also serve as a guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. The Court may require a background investigation, which may include a criminal and credit history check. Institutions such as a bank trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed guardian, but a bank trust department may act only as guardian of the property. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of preneed guardian or at the hearing.
There also are professional guardians who will serve for a fee. Professional guardians have been screened, completed certain training, and are bonded. * Click here to see the Registered Professional Guardians in your area: http://elderaffairs.state.fl.us/english/pubguard/GuardianList.rtf
WHAT DOES A GUARDIAN DO?
There are two types of guardians. One person can perform both duties or they can be split between 2 persons or a person and an institution.
1. Guardian of the Property
A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward’s support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions, such as selling or mortgaging property.
2. Guardian of the Person
The guardian of the person may exercise only those personal rights that have been removed from the ward, by the court and delegated to the guardian, such as to consent to medical, mental and personal care services and to determine the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court an initial guardianship plan including provisions for medical, mental health and personal care services and the type of residential setting best suited for the ward every year thereafter and an accurate accounting of all assets and distributions.
IS A GUARDIAN ACCOUNTABLE?
Yes. Guardians must be represented by an attorney who will serve as “attorney of record”. Guardians are usually required to furnish a bond or deposit the ward’s fund in a restricted account and may be required to complete a court-approved training program. The Clerk of the Court reviews all annual reports of guardians of the person and property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.
IS GUARDIANSHIP PERMANENT?
Not necessarily. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, the court will have the ward reexamined and can restore some or all of the person’s rights.
IS GUARDIANSHIP THE ONLY MEANS OF HELPING AN INCAPACITATED PERSON?
No. Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs whenever possible. If a person creates an advance health care directive and a durable power of attorney or revocable living trust while competent, he or she may not require a guardian in the event of incapacity.
WHAT ABOUT GUARDIANS FOR MINORS?
A child’s parents are the child’s natural guardians and in general may act for the child. However, in circumstances where the parents die or become incapacitated, or if a child receives either an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000, the court must appoint a guardian.
Both parents or a surviving parent may make and file with the Clerk of the Court a written declaration naming a “pre-need” guardian of the child’s person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will or a trust in which the child is a beneficiary. That guardianship terminates when the minor reaches the age of majority, even if the guardian believes the ward lacks the maturity to handle the assets.
GUARDIANS FOR THE DEVELOPMENTALLY DISABLED
Chapter 393 of the Florida Statutes is designed to meet the unique needs of persons with developmental disabilities. The statute does not require a separate hearing to determine incapacity and there is no adjudication of incapacity. The guardian is called a “guardian advocate”. Even though the name is different, the authority given by the court is the same as a guardian under Chapter 744. This is a less restrictive, less costly and preferred type of guardianship for persons with developmental disabilities.
The Cramer Law Center assists persons who wish to become guardians with filing the necessary legal paperwork, representing the person seeking to become a guardian at the hearing to determine incapacity, and helping the appointed guardian fulfill their legal duties. We also are qualified under the law to represent persons alleged to be incapacitated, to protect their interests and contest guardianship petitions, if necessary.