Guardianship

Guardianship is the process designed to protect and exercise the legal rights of individuals whose functional limitations (whether mental or physical) prevent them from being able to make their own decisions. When the court intervenes and decides to remove an individual’s right to order his or her affairs – whether one is dealing with a minor whose assets must be managed by another or an adult with a disability who is not capable of making decisions for him or herself – there is an accompanying duty to protect the individual. One of the court’s duties is to appoint a guardian and determine the duties and powers of the guardian. Fla. Stat. § 744.3678. All adult and minor guardianships are subject to court oversight.

The experienced trial attorneys at Robinson and Casey have counselled numerous families in South Florida seeking to protect a loved one who requires assistance, oversight, and protection due to physical or mental impairments. Establishing guardianship can be an emotional process, and the skilled legal team at Robinson and Casey can assist every step of the way. We work closely and compassionately with you to navigate guardianship and to ensure we achieve the right result for your loved one. Additionally, if you notice indications of neglect, abuse, or abandonment of an adult or child, Robinson and Casey can help assist you in determining if guardianship is right for your loved one. Robinson and Casey can also help you with identifying and contacting local agencies that are specifically tasked with protecting children, disabled adults, or elderly persons from further occurrences of abuse, neglect, or exploitation.

Enacting Guardianship can be an emotionally challenging experience for families who are witnessing a loved one decompensate and lose the capacity they once exercised with ease. At Robinson and Casey, we understand that struggle. As you read on about Guardianship in Florida, the procedure, the steps, and the language used by the Courts, we want you to first know what your experience will be like working directly with expert attorneys who came up through the behavioral health system. The attorneys and staff at Robinson and Casey are different because we understand your challenges, we know how to help you navigate resources in and around your loved one before, during, and after all the legal proceedings. We have years of experience collaborating with clinical and medical specialists to get your loved one immediate care while you are moving towards a long-term solution. We treat urgent matters with urgency. No wonder our slogan is Your Emergency is Our Emergency! The attorneys and staff at Robinson and Casey are here to hold you hand and guide you toward your goals of securing quality healthcare services for your loved ones in need.

Individuals may not always be able to handle their day-to-day financial and life affairs due to incapacity, inconvenience, unavailability, or other reasons. However, financial institutions and other people and entities typically deal only with the person entering into a contract, owning an asset, or being named on an account. Florida law provides a mechanism in which an individual is appointed to care for another individual who is deemed unable to make decisions for themselves. Fla. Stat. §§ 744.101-744.534. The term “guardianship” describes the legal relationship between the guardian and the ward. A “guardian” is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental and physical disabilities. The term “ward” describes a person whom the court had declared legally incapacitated (functional limitations prevent them from being able to make their own decisions) and has had some or all of his or her rights removed.

For example, depending on the situation requiring the guardianship, the ward may be owed Social Security disability or other governmental payments. These funds can be essential to a guardian in providing necessary care to the ward. Guardians are tasked with ensuring that their wards are receiving all their benefits.

Adult guardianship[1] is the process by which the court finds an individual’s ability to make decisions so impaired that the court gives the right to make decisions to another person. Guardianship is only warranted when no less restrictive alternative – such as durable power of attorney, trust, health care surrogate or proxy, or another form of the pre-need directive – is founded by the court to be appropriate and available.

Florida law allows both voluntary and involuntary guardianships. Fla. Stat. §§ 744.3201, 744.341. A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her estate and who voluntarily petitions for the appointment. An involuntary guardianship is requested from the court by someone other than the alleged ward.

After a petition to determine incapacity has been filed, but before a final appointment of a guardian, the court may appoint an emergency temporary guardian for the person, property, or both of an alleged ward. Frequently, a request for emergency temporary guardianship is submitted at the same time the original petition is filed, especially when we are helping our clients navigate the behavioral health concerns and emergency medical care needs of their loved one. To appoint an emergency temporary guardian, the court must find the imminent danger to the person’s physical or mental well-being or safety or that the person’s property will be wasted, misappropriated, or lost. The temporary guardian’s authority expires ninety (90) days after appointment or when a guardian is appointed, whichever occurs first. The authority of the emergency temporary guardian may be extended for an additional ninety (90) days, upon showing that the emergency condition still exists.

To establish adult guardianship,[2] there must first be a determination of incapacity. To do that, an individual must file a petition with the local court where the alleged ward resides. Fla. Stat. § 744.3201. The process is typically completed by hiring an experienced local attorney, such as Robinson and Casey, to draft the petition. Once the petition is filed, the court will appoint an attorney to represent the alleged incapacitated person. Additionally, a three-person examining committee will be appointed. The committee is made up of three medical professionals, including at least one physician or psychiatrist. Each medical professional will examine the alleged incapacitated person for physical and mental health, as well as functional ability, and file a report of their findings with the court. Within ten (10) to thirty (30) days of the committee members filing their reports, the judge will conduct an Adjudicatory Hearing. Based on the evidence presented at the Adjudicatory Hearing, the judge will determine whether the person is incapacitated and will appoint a guardian if required.

Any resident of the State of Florida who is 18 years old and any non-resident who is related to the ward by blood, marriage, or legal adoption may be a guardian. Fla. Stat. § 744.309. This includes the spouses of brothers, sisters, uncles, aunts, nieces, and nephews. Additionally, a bank or trust company may be appointed the guardian of the ward’s property, and a religious or charitable nonprofit corporation can be appointed the guardian of a ward’s person. Lastly, if the ward has no one to care for them, a public guardian can be appointed. Any prospective guardian must submit an application listing their qualifications to serve as a guardian. Additionally, every guardian must complete an eight (8) hour instructional training session covering the duties and responsibilities of a guardian. Fla. Stat. § 744.3145(a).

The process can usually be completed within ninety (90) days for uncontested guardianship. However, this process can be delayed if the guardianship is based on a mental health diagnosis due to the medical evaluation requirements. This tends to be another reason that an Emergency Temporary Guardianship may be necessary depending on the circumstances.

Florida law requires the court to appoint a guardian for minors[3] 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 the amount allowed by statute. Fla. Stat. § 744.3021. A guardian can be appointed to control both the custody of a minor and a minor’s finances. However, in some cases, one person may be appointed as the custodial guardian and a separate person appointed to be in charge of the minor’s finances. The person whom has custody and cares for the day-to-day needs of the minor is called a custodian. This arrangement can be preplanned in a will or may be imposed by the court.