Guardianship

Guardianship is the legal process by which a surrogate decision-maker may be appointed by the court to make decisions for a child or for an adult with an incapacity, such as dementia.  In the State of Florida, guardianship can be established on a voluntary or involuntary basis, and it can be total or limited in scope.  The purpose of a guardianship is to protect and preserve the incapacitated person’s health, safety, and assets.  The attorneys of Elizabeth R. Ondriezek, P.A. represent all parties to guardianship proceedings, including the ward (the incapacitated person), petitioners (those seeking to establish a guardianship for a minor or incapacitated person), and professional guardians (who may be appointed if a family member or friend is not available to serve as guardian).  The firm also represents petitioners in guardian advocacy proceedings, in which the ward is a person with a developmental disability.

Guardianship of an Incapacitated Adult

If a loved one is unable to manage his or her affairs, whether due to illness or physical or mental disability, it may be necessary to seek appointment of a guardian to act on their behalf.  This is particularly true if the person does not have adequate advance directives, such as a power of attorney or healthcare surrogate designation.  Guardianship is a last resort and should only be sought when a person either lacks advance directives, or when the advance directives are no longer sufficient.  Under Florida law, family members are preferred to serve as guardian, but friends may also petition to be appointed.  If the incapacitated person lacks sufficient resources to pay for the services of a guardian, the Public Guardian may be appointed.  If the incapacitated person lacks family members or friends who are willing and able to serve, a professional guardian may be appointed.

Incapacity Determination

The first step in a guardianship proceeding is the determination of incapacity.  The court will appoint an attorney for the alleged incapacitated person (AIP) as well as an Examining Committee consisting of three (3) individuals, one of whom must be a medical doctor.  The Examining Committee members are charged with evaluating the AIP and filing a report with their findings and recommendations.  If a majority of the Examining Committee members says that the AIP is incapacitated, the court will issue an order determining incapacity, which may be limited in scope or plenary, meaning a total or full incapacity.  If the AIP is determined to be incapacitated, the court will then consider whether a guardian should be appointed or if there are alternatives available, such as a power of attorney.

Appointment of a Guardian

Once the AIP is deemed incapacitated, he or she is then referred to as the ward, and if no alternatives to guardianship exist, the court will consider appointing a guardian for the ward.  A guardian may be appointed guardian of the person, meaning the rights delegated to the guardian pertain to the physical person of the ward, including rights involving the ward’s residence, social environment, and/or medical decisions.  A guardian may also be appointed guardian of the property, meaning the rights delegated pertain to the assets and income of the ward, including the right to manage money, give gifts, buy or sell, make investments, sign contracts, and/or anything else having to do with property ownership. Depending on the extent of the ward’s incapacity, the court may grant a limited guardianship, meaning only some of the ward’s rights are removed and delegated to the guardian, or a plenary guardianship, meaning all of the ward’s rights are removed and delegated to the guardian. 

After Appointment 

Once a guardian is appointed, he or she will have certain duties and responsibilities depending on the type of guardianship established (limited or plenary; of the person, property, or both).  Florida law requires guardians to submit reports to the court.  Guardians of the person file an initial plan outlining how they will meet the ward’s personal needs, including residential and medical needs, for the first year, and a new plan must be filed each year thereafter.  Guardians of the property file an inventory, detailing all of the property and assets owned by the ward, and annual accountings must be filed each year thereafter. 

There are certain rights delegated to guardians that they may exercise once they are appointed without any further approval from the court; however, there are other things guardians may wish to do on the ward’s behalf that require court approval.  It is important for guardians to consult with their attorney if there is any question as to whether an action requires prior court approval.

Voluntary Guardianship

Florida law allows for voluntary guardianship for adults are mentally competent but who are unable to manage their own financial affairs.  Such a person may petition to have a family member, friend, or a professional to serve as the guardian of their property.  The petition must be accompanied by a certificate from a licensed physician stating that he or she has examined the person and that the person is competent to understand the nature of the guardianship and their delegation of authority to the guardian.

Guardian Advocacy

Under Florida law, the court may appoint a guardian advocate for a person with developmental disabilities without the necessity of a determination of incapacity.  “Developmental disability” means a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.  Parents and guardians of a minor with developmental disability are encouraged to seek appointment of a guardian advocate before the minor turns eighteen (18), so that they can continue making decisions for and caring for the developmentally disabled person into adulthood.

Guardianship of a Minor

Florida law requires the appointment of a guardian of the property of a minor child when the child receives an inheritance, lawsuit or settlement proceeds, or insurance proceeds in an amount greater than the amount allowed by statute ($15,000 as of 2024). 

Professional Guardians

In cases in which no family member or friend is willing and able to serve as a ward’s guardian, it may be necessary for a professional guardian to be appointed.  In Florida, professional guardians must complete a minimum of forty (40) hours of training and pass the Florida professional guardian competency exam.  They must also complete continuing education requirements on an ongoing basis.  Professional guardians must register with the Office of Public and Professional Guardians, which includes submission of a credit and criminal history report as well as proof of a $50,000 blanket bond.  Professional guardians are compensated for their services from the assets of the ward upon court approval of their fees and costs.

Experienced Jacksonville Family Law Attorneys

Elizabeth Ondriezek is a Supreme Court Certified Mediator and experienced litigator who can help resolve your family law, dependency, adoption, or guardianship matter in or out of court, as most appropriate. For compassionate advice and aggressive representation in Jacksonville and its surrounding areas, contact Elizabeth R. Ondriezek, P.A.