Overview of the Guardianship Process in Florida
Guardianship is the judicial remedy designed to protect and exercise the legal rights of individuals who, as the result of illness, injury or congenital disability are unable to manage their property or to meet essential requirements for their own health or safety, and who have not made adequate plans to provide alternatives to guardianship in the event of incapacity. People who need guardianship may have dementia, Alzheimer’s disease, a developmental disability, chronic illness or other such conditions that generally cause functional limitations. The guardianship process begins with the filing of two petitions in Circuit Court. The first petition seeks a judicial determination of the capacity of the AIP. The second petition seeks the appointment of one or more guardians. Any competent adult may file the petitions. Once the petitions are filed the court will appoint an attorney to represent the AIP and an examining committee to conduct an evaluation. The examining committee members are required to complete their evaluations and submit their reports back to the court within 15 days. Generally, the final hearing will be held within 14 days after receiving the reports from the examining committee. The examining committee reports should include a physical health assessment, a mental health assessment and a functional assessment. Before a guardianship can be established, the court must hold an evidentiary hearing to determine the capacity of the AIP. The petitioner has the burden of establishing incapacity by clear and convincing evidence. Often, the reports of the examining committee will be sufficient to provide the level of proof required, but in most cases testimony is offered in support of the petitions. Typically, the petitioner will be called as a witness. It is not uncommon for members of the examining committee to offer testimony as well. The AIP, through appointed counsel, may offer evidence that he or she is not incapacitated, or that the scope of the incapacity is not as extensive as alleged. If the court finds the AIP to be incapacitated, the court must then determine if there is a less restrictive alternative to guardianship. If the court finds that adequate less restrictive alternatives exist, the alternatives will be preferred to the appointment of a guardian. Such alternatives may include a trust, durable power of attorney, living will or health care surrogate designation. The adequacy of alternatives is determined on a case by case basis. If the AIP is determined to be partially or totally incapacitated, a guardian must be appointed unless the court determines that less restrictive alternatives are adequate. In most cases, the qualifications of the prospective guardian will be the subject of testimony at the final hearing. After the order appointing guardian has been entered, the court will issue letters of guardianship once the prospective guardian has filed an oath and posted a bond. The guardian of the person has the authority to exercise only those personal rights that have been removed from the ward by the court and delegated to the guardian. Typically, the removable rights which may be delegated to a guardian of the person are the to determine the ward’s residence, to right to consent to the ward’s medical or mental health treatment, and the right to make decisions concerning the ward’s social environment. The guardian of the person is required to prepare and file with the court an initial plan explaining the needs of the ward and how the guardian plans to meet those needs. The plan is updated annually with the filing of annual plans. Once an initial or annual plan is approved by the court, the guardian of the person is responsible for carrying out the plan and may not deviate from it without court approval. The guardian of the property has only those property rights that have been removed from the ward by the court and delegated to the guardian. Typically, the removable righs which may be delegated to a guardian of the property are the right to contract, the right to apply for government benefits, to right to sue and defend lawsuits, and the right to manage property or to make gifts or other dispositions of property. Although in most cases the guardian of the property does have the inherent authority to receive the ward’s income, pay the ward’s bills and make investments on the ward’s behalf, there are a number of transactions which the guardian may not undertake without prior court approval. Once a guardian of the ward’s property has been appointed, any titled property of the ward (i.e., bank accounts, investment accounts, automobiles, homes, etc.) may need to be retitled or registered in the name of the guardianship, but not in the guardian’s name only. The guardian of the property is required to act prudently with respect to the ward’s property and may not comingle the ward’s property with the guardian’s own assets. Essentially, the guardian of the property has the same duties as would a trustee with respect to the ward’s property. A guardian of the property is required to obtain a surety bond in the amount of all of the ward’s intangible personal property (i.e., cash, investments, etc.), or, in the alternative, to place such assets in a restricted depository from which they can only be withdrawn pursuant to court order. The guardian of the property is responsible for the preparation and filing of any tax returns on the ward’s behalf. The guardian of the property has the responsibility of filing with the court the Initial Inventory and Annual Accountings which recapitulate all transactions involving the ward’s property during the accounting period. Therefore, a guardian of the property must keep detailed and accurate records of all of the ward's assets, income and expenses. Generally, any competent adult who is a resident of Florida may serve as a guardian. A nonresident of Florida may serve as a guardian if he or she is directly related to the ward or the adopted child or adoptive parents of the ward. In certain cases the court may appoint a professional guardian to act as a guardian for the person and/or property, or a corporate guardian, such as a bank or brokerage firm to act as guardian of the property. Florida Statutes prohibit the appointment of anyone as a guardian if they have been convicted of a felony, judicially determined to have committed abuse, abandonment or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses. In addition, a person who may be unable to perform his or her duties due to illness or incapacity may not be appointed. Generally, the court requires any guardian to submit (at his or her own expense) to a background investigation, which usually includes both a criminal and credit history check. Prospective guardians are expected to provide fingerprints and to sign releases so that the criminal and credit checks can be carried out. Once appointed as a guardian, whether as the guardian of the person or guardian of the property, Florida Statutes require the satisfactory completion of a training course within four months of appointment. Both the guardian of the person and the guardian of the property are required to satisfactorily complete an eight (8) hour training and instruction course. A guardian of the property for a minor is only required to receive four hours of training and instruction. There are various training courses offered in Pinellas County. We generally recommend the course offered by St. Petersburg College which in most cases can be completed via computer as an on-lin course. You may obtain more information about the course by visiting the college’s website at http://www.spcollege.edu/AC/lifelong/guardian.htm. Guardians are required to file certain reports to the court that has jurisdiction over the guardianship. These reports help the court to supervise the affairs of the ward and to monitor the actions of the guardian. When a guardianship is established, certain rights are removed from the ward and designated to the guardian. In order to ensure that the guardian is completing his lawful duties and responsibilities, the guardian is required to follow certain statutory requirements regarding the filing of reports to the court. Failure to comply with any of the reporting requirements may result in the guardian having to appear before the court.
All filed reports are initially reviewed by the Clerk of Court as required by Florida Statutes. Once the reports are audited by the Clerk of Court, they are forwarded to the court for review and approval.