Guardianship

Florida Guardianship Law

For the benefit of our clients we have briefly outlined the procedure used in Florida for Guardianships and terminology for Guardianship cases below. This is written in layman's terms for more detailed information contact the Law Office of Christopher S. O’Keefe, P.A.

Petition to Determine Incapacity

Pursuant to Florida Statute 744.3201(a), any adult person may petition the court to determine the incapacity of any other person. However, in most cases the Petitioner is usually a family member related in some way to the Ward. To avoid potential abuse and misuse of this act, the statue  provides that attorney’s fees and costs may be assessed against the petitioner if the court finds that the petition was filed in bad faith.

Venue for Filing the Petition to Determine Incapacity

The Petition should be filed with the guardianship/probate division of the clerk’s office in the county where the alleged incapacitated person resides.

Allegations made in the Petition to Determine Incapacity

There are slightly different rules and procedures in each Court. Nonetheless, at a minimum the Petition must be signed under oath, identify the Petitioner (with background information) and the identification of the Alleged Incapacitated Person with (with background information).

The petition must also state the grounds for belief that the Alleged Incapacitated Person should be examined, any other possible witnesses who would have knowledge of the facts, and the name of the Alleged Incapacitated Person’s physician, if known.

Also, the statute requires the petitioner to identify which rights the Alleged Incapacitated Person is incapable of exercising (see. F.S. 744.3215), i.e. to marry, to vote, to have a driver’s license, to manage his/her’s medical care, to manage his/her’s finances, etc. Additionally, the petition should include the names and addresses of next of kin.

The Procedure after the Petition to Determine Incapacity is filed with the Court

Within five (5) days after the petition has been filed, the court must appoint an examining committee. The committee consists of three members, one of whom must be a psychiatrist or physician. The other two members must be either: a psychologist, a gerontologist, another doctor, a licensed social worker, a nurse, or a person who the court believes can render an expert opinion on the matter.

Members of the committee may not be related to or associated with each other, with the petitioner, with the Alleged Incapacitated Person, or with any of the attorneys. They must file affidavits with the court saying they have completed courses required to be on examining committee. Then, within 15 days of his/her appointment, each examining committee member must individually examine the Alleged Incapacitated Person and submit a report and finding to the court, upon which it will base its decision. A copy of the report must be served on the petitioner and the attorney for the Alleged Incapacitated Person within three days of the report being filed and five days before the hearing.

The court will appoint an attorney to represent the Alleged Incapacitated Person and the clerk of court will serve the notice of the hearing on the petition on the Alleged Incapacitated Person and any other interested person set forth in the petition. The notice must state the time and place of the incapacity hearing and that if the court finds the Alleged Incapacitated Person to lack capacity that a guardian may be appointed.

Hearing on Incapacity

The court will set the hearing date, which has to be set no more than 14 days after the filing of the reports of the examining committee members, unless good cause is shown.

The Alleged Incapacitated Person is required to be at the hearing; however his/her presence may be waived by his/her attorney. The burden on proving incapacity is on the petitioner and the incapacity hearing is an evidentiary hearing where witnesses may be called and evidence may be admitted on the record. The examining committee members may be called to testify. Other witnesses may be called also. The Alleged Incapacitated Person’s attorney may offer evidence that there are some lesser alternatives to guardianship or rebut the evidence of incapacity.

After considering all of the evidence, if the courts finds by clear and convincing evidence that a person is 1) incapacitated and 2) that there is no alternative to guardianship, then the court will adjudicate the Alleged Incapacitated Person an incapacitated person. The incapacity may be limited or plenary (full), it may pertain to the person and/or the property. Once the court has entered the order, the Alleged Incapacitated Person becomes a (Ward) and retains only those rights not removed by the court. The hearing must be recorded by a court reporter and the court’s findings are subject to appeal.

The order adjudicating the Alleged Incapacitated Person constitutes proof of incapacity until further order of the court. Once ordered, the matter shifts from mental health to guardianship and the process of appointing a guardian commences.

Emergency Guardianship

In the event there is urgency to the appointment of a guardian, there is a procedure to have a temporary guardian appointed on an emergency basis. The court must find that there is a risk of imminent danger that the physical or mental health or safety of the Alleged Incapacitated Person will be impaired by delay or that the Alleged Incapacitated Person’s property is in danger of being wasted or misappropriated unless immediate action is taken by the court. The emergency temporary guardian is authorized to act on behalf of the Alleged Incapacitated Person for 90 days or until a permanent guardian is appointed, whichever occurs first. An additional 90-day extension may be granted. The Emergency Temporary Guardian must file a final report within 30 days after the expiration of the temporary guardianship and must be served on the successor guardian. This is just an interim procedure used as a stop-gap measure when there is a true emergency.

Qualifications to act as an Emergency Temporary Guardian

The court can appoint anyone who is fit and qualified to act as guardian, regardless of whether that person is related to the ward. However, the court must give preference to a person related by blood or marriage to the ward. Florida Statue 744.309 provides the basic qualifications of a guardian. The court looks at factors like education, ability manage finances, and any other factor it feels is relevant to the ward’s situation. The court must also consider the wishes expressed by the incapacitated person. A pre-need declaration of guardian is a form that someone can execute prior to becoming incapacitated which effectively tells the court who that person would want to serve as their guardian in the event he/she becomes incapacitated in the future.

Required Documents After filing a determination of incapacity

There are several pleadings that are involved in the commencement of guardianship:

1. Petition for Appointment of Guardian
2. Application of Guardian (fingerprinting and course completion are required)
3. Oath of Guardian
4. Designation of Resident Agent (for the guardian)
5. Guardian’s Bond
6. Order Appointing Guardian
7. Letters of Guardianship

Different forms of guardianship

There are two forms of guardianship: guardianship of the property and guardianship of the person. While they are often both required, there are instances where only one is necessary.

Guardianship of the Property

The guardian of the property has a duty to locate and take control over the assets of the ward. This includes, but is not limited to: bank accounts, stocks, and real estate. The guardian must file an initial inventory and verify under oath that it is accurate and complete. The assets are placed in the name of the guardianship and it is the guardian’s responsibility to ensure that the assets are safeguarded and spent appropriately for the ward’s benefit. Annual accountings are required to be filed with the court and are subject to court approval.

In addition to managing the ward’s assets, the guardian of the property may prosecute or defend causes of action against the ward.

The guardian of the property has certain powers that he/she can exercise without court approval and other powers that he/she may exercise but only after court approval. Those powers are set forth in Florida Statutes 744.444 and 744.441.

Guardianship of the Person

Guardianship of the person is a more intrusive and cumbersome form of guardianship than a simple guardianship of the property. When a person has been adjudicated incompetent by mental health professionals or is deemed incompetent by the law (i.e., a minor child), then the state appoints a guardian to watch over and make major life decisions for the ward until the reason for incapacity no longer exists, which might be death in the case of an elderly ward or turning 18 for a minor ward.

The guardian of the person makes decisions affecting everything from the ward’s residence, visitation, medical care, socialization, travel, etc. Guardians of the person must file annual reports with the court to advise the court on the status and health of the ward.

Guardianship of the Property without guardianship of the Person

There are several instances where only guardianship of the property is required. For example, if a minor is to receive property in excess of $15,000 in value (perhaps because it has been inherited from an estate or awarded in a law suit), then a guardian of the property will be required to protect that minor’s property even though a parent (natural guardian of the person) is alive and therefore no guardianship of the person is required.

Sometimes an adult will have documents in place that make a guardianship of the person unnecessary, for example a health care surrogate, but he/she may have assets in sole name and lack the capacity to manage them any longer.

Guardianship of the Person required without guardianship of the Property

The most common example of when only a guardianship of the person is required is when the ward created estate planning documents that eliminate the need for a guardianship. The most common of these is a living trust. By placing assets in a trust and then designating a string of successor trustees, the person creating the trust has effectively circumvented the need for having a guardianship of the property. In this scenario, if a guardian of the person is appointed, then that person will work with the trustee to ensure that the ward is taken care of properly. The guardian will determine what the ward’s living arrangements and expenses are and then the trustee will pay those expenses from the trust assets.

Plenary guardianship and a Limited guardianship

In a plenary guardianship, all delegable rights have been delegated to the guardian; no rights have been reserved to the ward. In a limited guardianship, some delegable rights have been delegated to the guardian while the ward reserves other rights. For example, in a limited guardianship the ward may reserve the right to make decisions about where he/she wants to live but may lose the right to marry or to enter into contracts.

Termination of guardianships

 Sometimes guardianships end because the ward dies. Other times they end because a child has reached the age of adulthood. Sometimes they end because the conditions that gave rise to the guardianship are no longer present. For example, someone who may have been suffering a mental infirmity may be able to have their capacity restored.

Lawyers needed for a guardianship

Yes, the law requires guardians to be represented by an attorney.