Guardianship Attorney in Florida

Guardianship Attorney in Florida

When a loved one loses the ability to make safe decisions about their health, finances, or daily care, guardianship is often the legal tool that protects them and gives you authority to act on their behalf. Florida’s guardianship laws are detailed and procedurally demanding—and navigating them without experienced counsel can delay protection or create costly mistakes. Robinson & Casey handles guardianship matters exclusively across South Florida and statewide, guiding families through every type of guardianship Florida law permits.

What Is Guardianship in Florida?

Guardianship is a court-supervised legal relationship in which a judge appoints one person (the guardian) to make decisions for another person (the ward) who cannot make safe decisions themselves. The ward is legally termed an “incapacitated person”—someone who lacks the capacity to manage their property, make health-care choices, or care for themselves. Unlike a power of attorney (which the person signs while still capable), guardianship requires court intervention and judicial oversight.

Florida Statutes Chapter 744 establishes the complete legal framework for guardianship in Florida. It defines who can be appointed, what powers guardians hold, and what duties they owe to the ward. The court remains involved throughout—guardians must file annual accountings, seek court approval for major decisions, and remain accountable to the judge.

Types of Guardianship in Florida

Florida law recognizes three main categories of guardianship, each designed for different circumstances and levels of incapacity.

Plenary Guardianship

Plenary guardianship grants the guardian full authority over both the ward’s person (health care, living arrangements, medical decisions) and the ward’s property (finances, real estate, investments). It is the most comprehensive form of guardianship and is appropriate when the incapacitated person cannot make any significant decisions safely. Under Fla. Stat. § 744.331, a plenary guardian has broad powers but must always act in the ward’s best interest and cannot exercise powers the court restricts.

Limited Guardianship

Limited guardianship grants authority over only specific areas of the ward’s life—for example, health-care decisions but not financial management, or property decisions but not personal care. This form respects the ward’s remaining autonomy and is used when the person retains capacity in some domains but not others. Fla. Stat. § 744.331 permits courts to tailor guardianship powers to the ward’s actual functional limitations. Limited guardianship aligns with modern guardianship reform principles, which emphasize preserving independence wherever possible.

Emergency Temporary Guardianship

Emergency temporary guardianship is a short-term protective measure available when immediate action is needed to prevent harm or loss. Under Fla. Stat. § 744.331, a court may grant emergency temporary guardianship ex parte (without the alleged incapacitated person present) if the judge finds reasonable cause to believe the person is incapacitated and immediate protective action is necessary. This order lasts only 14 days and must be followed by a full guardianship hearing. Emergency temporary guardianship buys time when a family member is in danger or at imminent risk of financial exploitation.

Mental Health Guardianship

Mental health guardianship is established when an individual’s mental illness or developmental disability prevents them from making safe decisions about mental health treatment. The process involves court evaluation of the person’s functional capacity in the mental health context. Mental health guardianship allows the guardian to consent to psychiatric treatment, medication, and hospitalization when the ward cannot do so. This type is distinct from general guardianship and addresses the specific vulnerabilities of individuals with serious mental health conditions.

The Guardianship Process in Florida

Filing the Petition

A guardianship petition is filed in the circuit court of the county where the alleged incapacitated person lives. Fla. Stat. § 744.331 requires the petition to include facts establishing incapacity and the need for guardianship. The petition must name the proposed guardian and describe the specific powers being sought. In the guardianship cases our attorneys handle, we ensure every detail is documented and compliant—incomplete petitions delay court action and frustrate families already under stress.

Court-Appointed Counsel and Evaluation

Once a petition is filed, Fla. Stat. § 744.331 requires the court to appoint an attorney to represent the alleged incapacitated person’s interests. The court also typically orders a capacity evaluation by a physician or mental health professional. This evaluation is critical—it provides the judge with objective evidence of the person’s functional limitations and informs the type and scope of guardianship appropriate.

Hearing and Adjudication

The alleged incapacitated person has the right to be present at the guardianship hearing and to contest the petition. The judge hears evidence about capacity, considers less-restrictive alternatives, and decides whether guardianship is necessary and appropriate. If the court finds clear and convincing evidence of incapacity, it enters an order appointing the guardian and defining the guardian’s powers.

Ongoing Duties and Accountability

Once appointed, the guardian must file an initial guardianship plan within 60 days, manage the ward’s property prudently, file annual accountings with the court, and seek court approval for major decisions (such as selling real estate or consenting to major medical procedures). The court supervises the guardianship throughout its duration.

Guardianship vs. Marchman Act

Families sometimes face a choice between guardianship and the Marchman Act (Chapter 397, Florida Statutes), which provides a civil procedure for involuntary assessment and stabilization of individuals with substance use disorders. Guardianship is a long-term legal relationship appropriate when incapacity is broad and ongoing. The Marchman Act is a shorter-term intervention focused specifically on substance use and designed to move the person toward treatment and recovery. The two serve different purposes, and sometimes both may be relevant. Understanding which tool fits your situation requires experience with both processes.

Why Less-Restrictive Alternatives Matter

Florida courts are required to consider whether less-restrictive alternatives to guardianship can adequately protect the incapacitated person. These might include a power of attorney, a representative payee arrangement with Social Security, a healthcare proxy, or a limited guardianship rather than plenary guardianship. The American Bar Association’s Commission on Law and Aging has emphasized that guardianship should be a last resort, not a first choice. Courts take this principle seriously, and petitions that ignore less-restrictive options may be challenged or modified. Our approach is to help families identify the least restrictive option that still provides the necessary protection.

Common Questions About Guardianship in Florida

Why Robinson & Casey for Guardianship Matters

Robinson & Casey focuses exclusively on guardianship and Marchman Act cases across South Florida and statewide. This singular focus means we know Florida’s guardianship statutes, local court procedures, and the judges who hear these cases. We handle every type of guardianship—plenary, limited, emergency temporary, and mental health—and we understand when each is appropriate. We also understand the intersection between guardianship and the Marchman Act, so families don’t have to choose blindly.

When you’re facing a situation where a family member can no longer make safe decisions about their care or finances, guardianship may be the legal path forward—and families in that position can reach out to us to understand their options. We’re here to walk you through the process, explain your choices, and handle the legal work so you can focus on your loved one’s wellbeing.

Call us at (561) 849-4149 or contact us online to schedule a consultation. We serve families across South Florida and throughout Florida.