Florida Guardianship Without a Lawyer: What to Know

When a loved one is struggling, many families ask one question first: can you file for guardianship without a lawyer? Florida law lets an adult sign the petition, so a family member can start the process alone. Filing is only the first step, though, and the court process has strict rules.

Yes, you can file, but filing is only the first step

Yes, a family member can start the process. Under § 744.3201, a petition to determine incapacity may be executed by an adult person. The petition must be verified, which means the person who files it swears it is true. It must explain why the petitioner believes your loved one is incapacitated, and it must list the people who saw those facts firsthand.

Filing and winning are different things. The court still has to decide whether your loved one needs a guardian. That decision comes after a hearing, a medical review, and formal notice. The petition opens the case. It does not decide it.

Many families expect the paperwork to be the hard part. Often the harder work is gathering the facts and proof the court needs. A weak or incomplete petition can slow the case down before a judge ever reviews the facts.

This page covers the general process. How a court handles any single case depends on the facts.

Who can file and which county hears the case

The petitioner is the person who files the case. The law calls the person who may need protection the alleged incapacitated person. The case usually belongs in the county where that person lives.

Venue, meaning the proper county, follows the person’s location. For a Florida resident, the guardianship is heard in the county where that person resides. § 744.1097 also allows a case to proceed where the person is found. For example, if your loved one lives in Miami-Dade County, the guardianship case generally belongs in Miami-Dade County.

Courts treat a wrong-county filing as a venue problem, not a lack of power to hear the case. J.P. v. J.N. states: “However, the filing of the petition in the wrong county did not divest the circuit court in Putnam County of jurisdiction.” In C.W.R.K. v. Stewart Marchman Act Behavioral Healthcare, the court stated: “The trial court failed to follow the governing statute when, in the absence of the petitioner, it called and questioned the health care professional who executed the involuntary services certificate.”

Your petition must also state your loved one’s name, age, county of residence, and present address. Get those details right before you file.

What a self-filed guardianship case involves

A self-filed case moves through several required steps. Each step has its own rules and timing.

• The petition. The verified petition must say whether you want a plenary or limited guardianship. It must also say whether a willing and qualified guardian cannot be located. § 744.334
• The court appoints an examining committee of three members, and one member must be a psychiatrist or other physician. § 744.331
• Notice. The notice and copies of the petitions must be read to your loved one. They must also go to their attorney and to next of kin named in the petition. The notice must say an attorney has been appointed to represent them. § 744.331
• The hearing. A person who has been determined to be incapacitated keeps important rights. These include the right to counsel, to access the courts, and to notice of all proceedings related to determination of capacity and guardianship, unless the court finds your loved one lacks the ability to comprehend the notice. § 744.3215
• After appointment. A guardian of the person must file an annual guardianship plan. Fla. Stat. § 744.367 provides that, unless the court requires filing on a calendar-year basis, each guardian of the person shall file with the court an annual guardianship plan within 90 days after the last day of the anniversary month that the letters of guardianship were signed, and the plan must cover the coming fiscal year, ending on the last day in such anniversary month; unless the court requires or authorizes filing on a fiscal-year basis, each guardian of the property shall file with the court an annual accounting on or before April 1 of each year, and that accounting must cover the preceding calendar year. § 744.367

Each step is a place where a missed detail can cost time. The list is simple. Carrying it out is not.

Where self-represented families often get stuck

Common stumbling blocks are a thin factual record, skipped alternatives, and gaps in notice.

The petition must give the factual basis for the belief that your loved one is incapacitated. It must also name the people who know those facts from personal observation. § 744.3201 General statements are hard to prove. Specific, dated facts carry more weight.

The petition must also say whether the alleged incapacitated person uses assistance, such as supported decisionmaking, to exercise his or her rights, and if so why that assistance is inappropriate or insufficient. Examples include a power of attorney, a trust, a health care surrogate designation, or a guardian advocate. If alternatives exist, the petition must explain why they are not enough. Fla. Prob. R. 5.560

In a Marchman Act case, the petitioner bears the burden of proof. In J.C. v. State, a Fifth District ruling, the trial judge effectively stood in for an absent petitioner. In J.C. v. State, the court failed to follow the applicable statute by essentially functioning as the absent petitioner. The petitioner has to bring the proof.

If a relative objects, or your loved one disputes the claim, the case can shift into a contested hearing. That brings more filings, more deadlines, and more questions about how much authority a guardian should have.

How urgent situations change the picture

An emergency temporary guardian is a short-term order for an immediate threat. The judge must find imminent danger before granting it.

A court may appoint an emergency temporary guardian only after a petition to determine incapacity is filed. The court must find that there appears to be imminent danger that your loved one’s physical or mental health or safety will be seriously impaired, or that their property is in danger of being wasted, misappropriated, or lost, unless immediate action is taken. § 744.3031 Notice of the petition and the hearing must be served on your loved one and on your loved one’s attorney at least 24 hours before the hearing, unless the petitioner demonstrates that substantial harm to your loved one would occur if the 24-hour notice is given. The court must also appoint counsel for your loved one in these summary proceedings.

The emergency authority expires 90 days after appointment or when a guardian is appointed, whichever comes first. It can be extended for another 90 days if the emergency still exists. The emergency guardian must file a final report no later than 30 days after the authority ends. Fla. Prob. R. 5.648

The Marchman Act is a separate civil process for involuntary assessment and treatment related to substance use. It is not the same as guardianship, though one family’s situation can involve both. In Hillsborough County v. Albrechta, the Second District held that a respondent in a Marchman Act proceeding has a constitutional right to counsel.

Signs you may want a lawyer before you file

Talk with a lawyer before filing if capacity is disputed, relatives disagree, or an emergency order may be needed. These are the situations where mistakes are hardest to undo.

• A relative or your loved one disputes that they are incapacitated.
• Another family member holds a power of attorney or advance directive that might serve as an alternative.
• Your loved one is hospitalized or in treatment, and a Marchman timeline is moving.
• Property, bank accounts, or housing is at risk and needs fast court action.
• You are unsure whether a plenary or limited guardianship fits.

A guardian also has limits. Without first getting specific court authority, a guardian may not commit the ward to a facility, institution, or licensed service provider without a formal placement proceeding. § 744.3215

If Robinson Casey cannot take a matter, it may refer that matter to another lawyer or firm.

Next steps and talking with Robinson Casey

Before you file, decide whether you can handle every required step alone. Start by gathering the facts the petition needs.

Collect your loved one’s name, age, and address. Gather the names and addresses of next of kin and the name of their attending or family physician. Write down the dated facts you saw yourself, and list any powers of attorney or other documents. The Polk County Clerk of Court’s guardianship page outlines the examining committee, hearing, appointment, and emergency filing steps.

Can a family member file for guardianship without a lawyer in Florida?

Yes. Florida law says an adult may execute a petition to determine incapacity, but the process has strict steps.

How long does an emergency temporary guardianship last?

Its authority ends after 90 days or when a guardian is appointed, whichever comes first. The court can extend it for 90 more days if the emergency still exists.

Does the person named in a petition get a lawyer?

Yes. In emergency proceedings, the court must appoint counsel for the alleged incapacitated person.

Robinson Casey focuses exclusively on Marchman Act petitions and guardianship matters. It serves families in Miami-Dade, across South Florida, and statewide. This page is the responsibility of Richard J. Casey III, Esq. The first consultation is free, confidential, and carries no obligation to continue. If you are weighing this decision while your loved one’s crisis is still active, call (561) 849-4149 or request a consultation.