A guardianship is a legal process where an individual (the guardian) is given the authority to exercise the rights of an incapacitated person (ward). A guardian could be an entity such as a non-profit organization or in some cases an incapacitated person may have more than one guardian. Before being appointed as guardian over a person, a court must first determine the person is incapacitated. This requires an examination of the ward by three physicians who determine the ward’s mental and physical abilities. Once a court determined a ward is incapacitated and a guardianship is needed, it will look to the guardian application to appoint a proper guardian for the ward.
Getting appointed as a guardian is a huge responsibility in Florida and is considered a fiduciary duty. A guardian may be appointed for the person, the property of the ward, or for both. As an appointed guardian, you are responsible for acting on behalf of the ward and making legal, medical and financial decisions for the ward. In doing so, you are obligated to make all decisions based on the best interest of the ward.
Who Can be a Guardian in Florida?
Any adult over the age of 18 who is a Florida resident may be appointed guardian of a ward, given that the person:
- Has not been convicted of a felony;
- Does not have a mental incapacity or illness that will interfere with his or her ability to carry out the duties of a guardian; and
- Is not otherwise unsuitable to perform the duties of a guardian
There are not many statutory requirements regarding who may be appointed as a guardian, but whether someone is fit to be a guardian is ultimately decided by the court. Florida law also requires guardians to complete a court approved guardianship course.
Types of Guardianship
The following are the types of Guardianship relationships that exist under Florida law:
A court appoints a plenary guardianship in a case where the ward is unable to make any decisions regarding matters such as property, financials or health. In a plenary guardianship, the guardian is assigned all of the ward’s delegable rights.
A court will find a limited guardianship is appropriate where the ward is deemed to be partially incapacitated. This means the ward lacks the capacity to make some decisions regarding his or her health, money or property. The court will assign the guardian specific delegable rights that it finds the ward is unable to handle on his or her own.
Emergency Temporary Guardianship
A temporary guardianship is assigned for an alleged ward before the ward is appointed a guardian. The court must find that the ward is in imminent danger that threatens his or her safety or that the ward’s property is in danger of being misappropriated or destroyed.
A person may voluntarily petition the court to appoint them with a guardian. Under a voluntary guardianship, the ward may terminate the guardianship.
As the name suggests, a preneed guardianship is when a person selects someone else to be his or her guardian in the event that he or she becomes incapacitated in the future.
When your loved one is unable to make some, or all, decisions for themselves, your best option is to contact an experienced Florida guardianship attorney. At The Florida Estate Planning Law Firm, our guardianship attorneys have the knowledge and experience to help you understand your options, and come up with a plan that will be best for you and your loved one.