How to Establish Guardianship in Florida: A Clear Starting Point for Families

To establish guardianship in Florida, someone asks a court to decide whether an adult can still make certain decisions.

Families usually start here during a hard stretch. A parent may be missing bill payments or making unsafe choices. A relative may be recovering from a stroke or a serious injury. Someone may be in a mental health or substance use crisis. Each situation raises the same question: who will make decisions now?

Richard J. Casey III, Esq. is the responsible lawyer for this page. Robinson Casey focuses on Marchman Act petitions and guardianship matters for families in Miami-Dade, South Florida, and across Florida.

What Establishing a Guardianship in Florida Means

A guardianship is a court case where a judge appoints someone to make decisions for an adult found to be incapacitated. The court makes that finding, not the family. Before the hearing, the adult is called the “alleged incapacitated person.” After appointment, the adult is called the “ward.”

Two questions drive the case. First, can the adult still exercise certain rights? Second, if not, who should act for them? The judge answers both under the statute, after reviewing evidence and reports.

According to the Polk County Clerk of Court’s guardianship page, Florida procedures include an incapacity evaluation, examining-committee reports, court hearings, and guardian appointment. This guide follows those stages in order.

Families reach this step for different reasons. A parent’s memory or judgment may be slipping. A relative may be unable to manage money or medical choices after an injury or stroke. A family member may have a mental health condition, or a loved one may be in a substance use crisis.

Guardianship or Power of Attorney: Deciding Whether Guardianship Fits

Guardianship fits only when the court finds that no alternative will sufficiently address the adult’s problems. When a court finds an adult cannot exercise certain rights, it must consider whether an alternative will work.

The statute names several alternatives. They include an advance directive, a durable power of attorney under chapter 709, a representative payee, and a trust. The petition must explain why a guardian advocate or other alternatives are not enough. See Fla. Stat. § 744.334.

A power of attorney is different from guardianship. A guardianship is a court order. It removes rights from the adult and gives some of them to a guardian.

Families also ask about the downsides. A guardianship brings court supervision. The guardian must file reports and accountings. Rights the court removes move away from the adult. The adult keeps several rights, including the right to an annual review of the guardianship report and plan under Fla. Stat. § 744.3215.

Weigh those costs against what a less formal option would do. Under § 744.3215, without first obtaining specific authority from the court, a guardian may not commit the ward to a facility, institution, or licensed service provider without formal placement proceeding.

Who Can File and Where the Petition Goes

An adult may sign the petition to determine incapacity. An adult child, spouse, or sibling can therefore file it. Filing for a parent is common.

The petition must state the petitioner’s relationship to the adult. It must also list the names and addresses of the adult’s next of kin, so far as they are known. The petition is filed with the court that handles the incapacity case.

Who can serve as guardian is a separate question. Under Fla. Stat. § 744.309, any Florida resident who is 18 or older and sui juris (legally able to manage their own affairs) can serve. A person convicted of a felony cannot be appointed.

The court also looks at family ties. Fla. Stat. § 744.312 says that if a standby or preneed guardian cannot be appointed, the court may appoint a fit and proper person and gives preference to a person who is related by blood or marriage to the ward, has relevant educational, professional, or business experience, can manage the financial resources involved, or can meet the law’s requirements and the case’s unique needs. The court must also consider the wishes the adult expressed about who should serve.

Preparing the Petition and Required Documents

The petition to determine incapacity must include specific facts. Fla. Stat. § 744.3201 lists what it must contain:

• The petitioner’s name, age, present address, and relationship to the adult
• The adult’s name, age, county of residence, and present address
• The adult’s primary language, if known
• Whether the adult uses supports such as supported decisionmaking, and why those supports are not enough
• The facts behind the belief that the adult is incapacitated, and the names of people who saw those facts firsthand
• The name and address of the adult’s physician, if known
• Which rights the adult cannot exercise, or a statement if the petitioner lacks the experience to judge that
• The next of kin, their relationships and addresses, and the birth dates of any minors

If a guardianship petition is also filed, a copy must go in with the incapacity petition.

The guardianship petition has its own requirements. Under Fla. Stat. § 744.334, it must say whether the guardianship sought is plenary or limited. It names the proposed guardian and explains why that person should serve. It also states the nature and value of the adult’s property.

Notice comes next. Under Fla. Stat. § 744.331, the petition and notice must be served on and read to the adult. Copies go to the adult’s attorney and to the next of kin named in the petition.

How Incapacity Is Assessed: The Examining Committee

The court must appoint an examining committee within 5 days after the incapacity petition is filed. The committee has three members. Under Fla. Stat. § 744.331, each committee member’s written report must include, to the extent possible, a diagnosis, prognosis, and recommended course of treatment.

Unless good cause is shown, the adult’s attending or family physician may not serve on the committee, but if that physician is available, the committee must consult with them.

Members must communicate with the adult in the adult’s language, directly or through an interpreter.

Either side may object to parts of the committee’s reports. The objection must be filed and served no later than 5 days before the adjudicatory hearing, unless the court extends the time for good cause shown, and it must state the basis for the objection. If an objection is timely, the court applies the rules of evidence to decide whether the reports come in.

The reports are evidence, not the final decision. The judge makes the finding of incapacity on the basis of clear and convincing evidence and enters a written order determining incapacity. The adult has an attorney, and the notice must say so.

Plenary, Limited, Person, Property, or Both

A plenary guardianship and a limited guardianship differ in the powers the court gives. The petition states which one is sought. The letters of guardianship state which one was granted. If the guardianship is limited, the letters must list the guardian’s powers and duties.

A guardianship can cover the person, the property, or both. The letters must say which. A guardian of the property must protect and invest the property prudently. The guardian must also keep clear, accurate records. Fla. Stat. § 744.361 sets out these duties.

A guardian of the person has different duties. The guardian must consider the ward’s expressed desires. The guardian must let the ward keep in touch with family and friends, unless contact may cause harm. The guardian may not restrict the ward’s physical liberty more than reasonably necessary.

A mental health condition can lead to this same guardianship process. The court still makes the incapacity finding and the appointment decision. A guardian also cannot commit the ward to a facility without the court’s specific authority. Fla. Stat. § 744.3215 provides that, without first obtaining specific authority from the court, a guardian may not commit the ward to a facility, institution, or licensed service provider without a formal placement proceeding under chapter 393, chapter 394, or chapter 397.

Emergency Temporary Guardianship When Harm Is Immediate

A court may appoint an emergency temporary guardian before the full hearing when immediate harm is likely. The incapacity petition must already be on file. The court must find that imminent danger appears likely to seriously impair the adult’s health or safety, or that property is at risk.

The court must appoint counsel to represent the adult during these summary proceedings. Under Fla. Stat. § 744.3031, notice must reach the adult and the adult’s attorney at least 24 hours before the hearing. The exception applies when the petitioner shows that substantial harm would occur if 24-hour notice is given.

The emergency guardian’s authority is time-limited. It expires 90 days after appointment or when a guardian is appointed, whichever comes first. The court may extend it for another 90 days if the emergency still exists. The temporary guardian must file a final report no later than 30 days after the authority ends.

The court’s order must list the emergency guardian’s powers. The court may also issue an injunction or other order to protect the adult’s health or safety.

The Hearing, the Court’s Findings, and the Rights That Are Removed

At the hearing, the court decides whether the adult is incapacitated. It also decides which rights to remove. Some rights can be removed without being given to a guardian. Under Fla. Stat. § 744.3215, rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right to vote, to have a driver license, to travel, and to seek or retain employment.

Other rights can be removed and delegated to the guardian. Under Fla. Stat. § 744.3215, rights that may be removed by an order determining incapacity and delegated to the guardian include the right to contract, to sue and defend lawsuits, to manage property or make any gift or disposition of property, and to determine residence. The guardian may also make health care decisions, as the statute defines them, if that right has been removed from the adult; withdrawing or withholding life-prolonging procedures then requires court approval under s. 744.4431 when the decision is made by a professional guardian, as defined in s. 744.102.

Some rights stay with the adult. Florida law provides that a person who has been determined to be incapacitated retains the right “to be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation,” along with the right “to counsel” (Fla. Stat. § 744.3215). The adult has the right to be restored to capacity at the earliest possible time.

Restoration data is limited. The National Guardianship Association’s restoration report says Florida lacks uniform statewide data on guardianship and restoration outcomes.

Timing varies with the court’s calendar and with whether anyone contests the petition.

Letters of Guardianship and the Guardian’s Duties

Letters of guardianship are the court document that gives the guardian authority to act. They are issued to the guardian. They state whether the guardianship covers the person, the property, or both. They also state whether the guardianship is plenary or limited, as Fla. Stat. § 744.345 requires.

Once appointed, the guardian acts as a fiduciary. Letters of guardianship are issued to the guardian and state the scope of the guardianship; the good-faith duty is not stated in § 744.345. Fla. Stat. § 744.361 sets out these duties.

For property, a guardian who is given authority over the ward’s property must protect and preserve it and keep clear, distinct, and accurate records of its administration. The inventory lists the property the guardian knows of and where it is located. It also describes every source of income, including social security and pensions, under Fla. Stat. § 744.365.

The guardian must keep the supporting papers for the initial inventory for 3 years after discharge.

Who Pays for a Guardianship and What Affects Cost

Guardian and attorney fees must be reasonable, and the court decides what counts as reasonable. Under Fla. Stat. § 744.108, a guardian, or an attorney who served the ward or the guardian on the ward’s behalf, is entitled to a reasonable fee and reimbursement of costs incurred on behalf of the ward.

The court looks at several factors. Under Fla. Stat. § 744.108, when fees for a guardian or an attorney are submitted to the court for determination, the court considers criteria including the time and labor required, the novelty and difficulty of the questions involved and the skill required, the fee customarily charged in the locality for similar services, the results obtained, and the time limits imposed by the circumstances, among others. Fee requests must include an itemized description of the services performed. A fee petition cannot be approved without notice to the guardian and the ward, unless the ward is a minor or totally incapacitated.

When the court reviews or determines a guardian’s or attorney’s fees, the costs of that proceeding are set by the court and paid from the guardianship estate unless the court finds the requested compensation substantially unreasonable.

Property valued under $25,000 carries no audit fee under Fla. Stat. § 744.365.

Cost also rises with contested proceedings, complex finances, and extra hearings. Total cost depends on the facts of each case.

Your Next Step With Robinson Casey

If you’re reading this about a parent who can no longer handle bills or make safe choices, you’re facing a decision you didn’t choose. Talking through your own facts before you file anything can help you see your options clearly. Robinson Casey can review those facts with you. To reach the office, dial (561) 849-4149 or send a message through the contact form. The first consultation is free, confidential, and carries no obligation to continue.