What is a Guardianship?
Written by: Ashley Roof, Esq.
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. The guardian is an individual appointed by the court, following the completion of fingerprinting, a background check, and an application. For the guardianship to occur, the court must determine an adult lacks the capacity to manage at least some, if not all, or his or her property, or lacks the capacity to meet as least some essential health and safety requirements.
How is a person determined to be incapacitated?
The first step towards a determination of incapacity is for any person to file a petition with the court determining another person’s incapacity. The petition must contain factual information supporting the belief the person is incapacitated. Typically these petitions are filed by a relative; however, sometimes a local Orlando agency, such as the Florida Department of Children and Families Adult Protective Services may file the petition.
The court will then appoint three people to serve as the examining committee. Usually, the three individuals include two physicians, and one other person who by knowledge, skill, training, or education can form an expert opinion. Each examining committee member will then submit a report to the court with their findings and, if the person is found to be incapacitated, a suggestion of either a Plenary Guardianship or a Limited Guardianship. Once a person has been deemed incapacitated, they become what is known as a Ward.
What are the different types of Guardianships?
As is relates to adults, there are multiple types of Guardianships. A Guardianship of the Person is implemented when the Ward has little or no assets that require guardianship, but their ability to make decisions such as medical care, housing arrangements, and personal care are in question. A Limited Guardianship and a Guardianship of the Property occurs when the Ward is capable of making person decisions, but incapable of making financial decisions. This requires the Guardian to oversee the Ward’s assets and property. The final type of Guardianship is a Plenary Guardianship of the Person and Property. In these situations, the Ward is incapable of making both financial and personal care decisions, requiring a Guardian to oversee all decision making areas.
Does the Ward maintain any rights?
Following the appointment of a Guardian, the Ward may lose some or all of their rights. Certain rights are non-delegable, meaning the Guardian cannot exercise those rights on behalf of the Ward, while other rights may be delegated to the Guardian. Below, we have outlined the various rights:
- The right to vote;
- The right to marry;
- The right to personally apply for government benefits;
- The right to travel at will
- The right to seek or retain employment; and
- The right to have a driver’s license.
- The right to contract;
- The right to sue and defend lawsuits;
- The right to apply for government benefits;
- The right to manage property or to make any gift or disposition of property;
- The right to determine his or her residence;
- The right to consent to medical and mental health treatment; and
- The right to make decisions about his or her social environment.
These rights can be removed or retained at the discretion of the court.
Who may become a Guardian?
Any adult resident of Florida, related or unrelated to the Ward, may become a guardian. In certain circumstances relatives of the ward who do not live in Florida also may serve as guardian. However, if a person has been convicted of a felony or is incapable of carrying out the duties of a guardian, they may not be appointed.
In addition to relatives, there are professional guardians, who serve as guardians to multiple Wards and are familiar with the guardianship process.
Institutions such as a bank trust department or nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the property.
What does a Guardian do?
A guardian who is given authority over property of the ward is required to inventory the property, and ensure it is used in support of the Ward. To ensure this is taking place, annual accounting are required, detailing each transaction involving the Ward’s assets and property that took place over a calendar year.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care along with a physician’s report.
A guardian must be represented by an attorney who will serve as â€˜attorney of record.’ Guardians are usually required to furnish a bond 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. Guardians who do not properly carry out their responsibilities may be removed by the court.
Is a Guardianship permanent?
Not necessarily. If a ward recovers in whole or part from the condition that caused that person to be incapacitated, a petition can be filed with the court to restore the ward’s rights. In such a case, the court will have the ward re-examined and can restore some or all of the ward’s rights.
A guardian may be held accountable and removed as guardian if the guardian fails to carry out the expected duties or otherwise becomes ineligible to act as guardian. A guardian also may resign by providing notice to the court.
Is a Guardianship avoidable?
Yes. Florida law requires the use of the least restrictive alternative to protect people incapable of caring for themselves and managing their financial affairs whenever possible.
The best way to prevent a Guardianship is to create an advance health care directive, a durable power of attorney or trust prior to any allegations of incapacity. A Designation of Preneed Guardian also allows you to name your preference in Guardians and to state who you do not want to be your Guardian, should you be deemed incapacitated.
To learn more about Guardianships, please visit the Orlando, Orange County Clerk of Courts website at https://www.myorangeclerk.com/Divisions/Probate/Guardianship-FAQs.