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Guardianships

What is a guardianship?

A guardianship is a legal proceeding where the court gives one person authority (or power) to make decisions for another person who is unable to make decisions. 

 

Are there different types of guardianships?

Yes.  Florida law provides for the following types of guardianship:
      1.   Guardianship of adult (person and/or property)
      2.   Guardianship of minor (person and/or property)
      3.   Guardian advocacy of adult with developmental disabilities and/or mental illness (person and/or property)
      4.   Florida law also provides for an order of temporary custody by an extended family member.  This order grants the same powers                  as a guardianship; however, it is filed in a civil court division, not the guardianship court division or the family court division.

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What is an incapacitated person?

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An incapacitated person is a person who has been judicially determined to lack the capacity necessary to manage at least some of his or her property or who cannot provide for his or her own health and safety.  A minor is considered incapacitated because of his or her age.

 

What are the steps needed to become guardian of an incapacitated adult?

Documents (called pleadings) are filed with the court.  An attorney is appointed for the alleged incapacitated person.  The court appoints a three-member examining committee to interview and examine the alleged incapacitated person. Each committee member files a report with the court. A hearing is set before the judge. At the hearing, the judge hears evidence regarding the necessity of a guardianship.
If the court finds the person needs a guardian, the court will appoint the person who filed documents with the court. If several people have applied to be guardian, the court will hear evidence about who will be the best guardian. The court will pick from those individuals. If the court finds none of the individuals should be guardian, the court will appoint a professional guardian.

 

How soon can I be appointed the guardian?

The court may appoint an emergency temporary guardian if one is required. This type of guardian is usually appointed within 48 hours. A guardian of the person and/or property of an incapacitated adult will usually be appointed within 30-45 days.  A guardian for a minor can usually be appointed within 7-14 days.  A guardian advocate will usually be appointed within 30-45 days.  An order of temporary custody by an extended family member can usually be obtained within 14 days. Note: these time periods referred to cases filed in Duval County Florida. When a guardian is appointed, the incapacitated person is then referred to as the ward.  A minor child is also called a ward. 

 

Does the guardian have to file any reports with the court?

Yes.  The guardian of the person is required to file an initial guardianship plan and an annual guardianship plan. The guardian of the property is required to file an inventory and an annual financial accounting showing the receipts and disbursements made during the previous year.

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Are there any other requirements a guardian must complete?

Yes. A guardian must complete an eight-hour guardianship education class. A certificate of completion must be filed with the clerk of court.  Certain counties require a guardian to complete a criminal background check and credit report before being appointed guardian.

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When is a guardianship required for a minor?

Florida law requires a guardianship of the property of a minor to be set up if the minor receives assets (inheritance, insurance policy proceeds, settlement from an accident case, etc.) over $15,000.  A guardianship of the person and/or property may be set up if one or more of the natural parents are deceased. Certain situations will arise that allow legal guardianship of the child to be established despite the parents’ objections. In most cases, this involves proving the parents are unfit.  These cases are usually handled by DCF and occur before a juvenile dependency judge rather than a guardianship judge. 

 

What does a guardian do?

A guardian of the property handles the assets (real property, money, investments, etc.) for the ward, pays the bills of the ward and uses the money for the ward’s welfare and support.  A guardian of the person decides where the ward lives and provides medical, mental health and personal care for the ward.

A guardian advocate performs the same duties as a guardian; however, one of the reasons for the appointment of a guardian advocate is to obtain authority to apply for governmental benefits.

The guardian of a minor performs the same duties as guardian, but also has authority to enroll the child in school and consent to medical treatment.

 

Is a guardian entitled to be paid for his or her services?

Yes, however the fee must be approved by the court.