A comprehensive guide for parents and caregivers of children or adults with disabilities or special needs.

November 27, 2018

Many parents and caregivers are unaware of how the State of Florida determines the need for guardianship and what steps are necessary to get appointed as guardian of the person or guardian of the person and property.


The following 8 Steps to Guardianship in Florida will help you understand the instances in which a guardianship may be necessary as well as the steps and requirements to successfully navigate the guardianship process.

 

 

I.         DEFINITION OF GUARDIANSHIP

 

A Guardianship is a legal proceeding governed by Chapter 744 of the Florida Statutes where circuit courts appoint a guardian to exercise legal rights on behalf of an incapacitated person.

 

II.        REQUIREMENTS TO DETERMINE THE NEED FOR GUARDIANSHIP

 

Under Florida Statutes 393.12, a Guardian may be appointed by a Probate Court to handle the decision-making tasks necessary to care for the person or property of a minor child or adult (also known as a “Ward”), who meets one of the following incapacitations:

 

  • developmentally disabled; or,

  • adjudicated incompetent by a mental health professional or by law.

 

Some of the decisions a Guardian would make on behalf of a Ward may include, but is not limited to:

 

  • medical treatment

  • applying for benefits

  • property and asset protection

 

III.       EIGHT STEPS TO LEGAL GUARDIANSHIP IN THE STATE OF FLORIDA

 

Step 1:  Hire an Attorney

 

Under Florida Probate Rule 5.030 every guardian and personal representative must be represented by legal counsel admitted to the Florida Bar. Therefore, the first step in obtaining guardianship is hiring an attorney who files a petition requesting a determination of an individual’s incapacity. 

 

Step 2:  Meet the Guardian Qualifications

 

Under Florida Statutes 744.309, you are qualified to act as guardian of a Ward if you are:

 

  • A Florida State resident who is

    • fully and legally capable of acting on your own behalf and

    • 18 years of age or older

or

 

  • A nonresident who is:

    • a blood relative of the ward;

    • an adopted child or adoptive parent of the ward;

    • a sibling, uncle, aunt, niece, nephew, spouse of the ward; or

    • the spouse of a person who is qualified to act as guardian under F.S. 744.309.

 

Under Florida Statues 744.312, the court prefers to appoint a proposed guardian over the Ward who:

 

  • is related to the ward by blood or marriage;

  • has an educational, professional, or business background associated with the services needed by the ward;

  • is capable of managing the ward’s financial resources; or

  • meets the legal requirements under the law and ensure the ward receives the appropriate care tailored to his or her unique needs.

 

However, if there is no proposed guardian available as outlined in Florida Statues 744.309 above, the court may appoint anyone it deems fit and duly qualified to act as a guardian.

 

You CANNOT meet the guardianship qualifications if you are:

 

  • convicted of a felony, or

  • incapable of discharging the duties of a guardian because of incapacity or illness, or

  • judicially determined to have committed abuse, abandonment, or neglect against a child, or

  • found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under F.S. 435.04 or a similar statute in another jurisdiction, or

  • otherwise unsuitable to perform the duties of a guardian.

 

Step 3:   Select the Appropriate Guardianship Type

 

In Florida, there are four categories of guardianships. The chart below lists the specific responsibilities of each guardianship type.

 

 

Step 4:  Undergo Background Investigations

 

The proposed guardian must undergo a Level 2 background screening at his/her own expense. The background screening includes a credit history investigation. It also includes a criminal history investigation, which covers criminal and juvenile record checks conducted by local, state, and federal law enforcement agencies.

 

Step 5:  Complete the Guardian Education Requirements

 

Within four (4) months after being appointed Guardian of a Person, the guardian must complete an 8 hours guardianship course covering the:

 

  • guardian's legal duties and responsibilities;

  • ward's legal rights;

  • local resources available to help the ward; and

  • rehabilitation plans and annual guardianship reports, including a financial accounting of the ward’s property.

 

Within four (4) months after being appointed a Guardian of the Property, the guardian must complete 4 hours of instruction and training covering the:

 

(a) legal duties and responsibilities involved when handling the ward's property;

 

(b) initial inventory and annual guardianship accounting of the ward’s property; and,

 

(c) use of the ward's assets.

 

Step 6:  Powers and Duties of a Guardian

 

  • Duties of Guardian of a Person

  • Consider the expressed desires of the ward.

  • Allow the ward to maintain contact with family and friends.

  • Allow the ward reasonable physical liberty (unless it poses serious physical injury, illness, or disease, to the ward or another person).

  • Assist the ward in developing or regaining capacity, if medically possible.

  • Notify the court if the ward regains capacity and that one or more of the rights that have been removed should be restored to the ward.

  • Provide for the ward’s medical, mental, rehabilitative, and personal care.

  • Advocate on behalf of the ward regarding access to home and community-based services.

  • Wherever possible, clearly understand the risks and benefits of a recommended course of health care treatment before making a health care decision on behalf of the ward.

  • Evaluate the ward’s medical and health care options, financial resources, and desires before selecting or changing a residence best suited for the ward’s current needs.

  • Duties of Guardian of the Property

  • Protect and preserve the property.

  • Invest it prudently.

  • Keep clear, distinct, and accurate records of the administration of the ward’s property.

  • At the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.

  • Duty to File Initial Guardianship Report

 

Within 60 days after receiving letters of guardianship from the court,

 

  • a Guardian of the must file with the court an

  • a Guardian of the must file with the court a .

 

The initial guardianship plan shall include provision for the ward’s:

 

1. medical, mental, personal care, or social services; and,

2. place of residence to meet his/her needs.

 

The verified inventory must include the following:

 

  • All of the ward’s real and personal property (including cash assets).

  • The location of the real and personal property (including safe deposit boxes).

  • A description of all sources of income, including, social security benefits and pensions.

  • Duty to File Annual Guardianship Report

 

The Guardian of the Property must file an annual guardianship report, which consists of an annual accounting.

 

The Guardian of the Person must file an annual guardianship report, which consists of an annual guardianship plan.

 

 

Step 7:  Final Report and Application for Discharge of Guardian

 

When the ward dies, and if the guardian

 

  • faithfully discharges his or her duties,

  • completes distribution of the ward’s property to the persons entitled, and

  • files a final report,

 

then

 

Step 8:  Discharge of Guardian

 

The court conducts a hearing approving the guardian’s final report and enters an order of discharge releasing the guardianship from his or her duties, provided there are no objections.

 

We hope you found this resource helpful and informative.  If you require assistance with a Probate, Trusts & Estates, or Guardianship matter, please feel free to contact Attorney Kimberly Soto for a free 15-minute consultation at 321-972-2279.

 

 

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