FAQ
(Guardianship Questions)
Probate/Estate Questions
| Guardianship Questions
1. What is a Guardianship?
2. What is a Guardian?
3. How is a person determined to be incapacitated?
4. Who may serve as Guardian?
5. What does a Guardian do?
6. Is a Guardian accountable?
7. Is Guardianship permanent?
8. Is Guardianship the only means of helping an
incapacitated person?
9. What about Guardians for minors?
1. 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.
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2. 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.
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3. HOW IS A PERSON DETERMINED TO BE
INCAPACITATED?
Any 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
a committee of two professionals, usually physicians, and a lay person 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.
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4. WHO MAY SERVE AS GUARDIAN?
Any 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. 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 only act 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.
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5. WHAT DOES A GUARDIAN DO?
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.
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.
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6. 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
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.
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7. 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.
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8. 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.
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9. WHAT ABOUT GUARDIANS FOR MINORS?
A child's parents are the child's natural guardians and in
general may act for the child. 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 $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 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 in which the child is a beneficiary.
The material on this page represents general legal advice.
Since the law is continually changing, some provisions in this pamphlet may be
out of date. It is always best to consult an attorney about your legal rights
and responsibilities regarding your particular case.
(updated 4/02)
Please
contact us if
you have a question that is not answered.
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