legal guardianship in florida
A legal guardianship is the result of a court supervised process. It removes certain or all of the delegable rights of someone deemed incapable of managing their personal or business affairs ( the “ward”) and entrusts those rights to another person (the “guardian”). Guardians are held to strict standards of behavior and must exercise their authority doing only what is in the best interests of a ward.
The legal guardianship attorneys at the Sarasota law firm of Luhrsen Goldberg, help Florida families who need to establish or terminate legal guardianships for minors or adults with disabilities.
What Does a Legal Guardian Do?
A guardian assumes legal responsibilities for another person. If that person is a minor (i.e., under age 18), a guardianship usually includes the care and custody of the person as well as legal decision-making authority. Sometimes minors end up with large amounts of property through inheritance or court settlement, and a guardianship may be required to manage the property until the minor reaches adulthood.
If the ward is an adult, the guardian will be granted only such authority as is necessary to meet the ward’s needs without being unduly restrictive. Before a guardianship will be appointed for an adult it must be demonstrated to the court that the adult lacks the capacity to handle whatever matters prompted the petition for guardianship.
The following are among the powers and duties of guardians in Florida:
- A guardian is a fiduciary and must act for the benefit of the ward in all matters affecting the ward.
- A guardian must act in good faith.
- A guardian must not act outside the scope of authority conferred by the court.
- A guardian must protect, preserve, and invest prudently the property of a ward.
When legal guardianships are over a person, the guardian must take into account the ‘unique needs and abilities’ of the ward and must advocate for them in all appropriate situations. Guardians must also consider the wishes of the ward when making decisions affecting their personal welfare.
Who Can Serve as a Guardian in Florida?
Any adult resident of Florida can potentially serve as a guardian. A guardian need not be related to a ward. But the only out-of-state persons that can be appointed guardians of Florida residents are the relatives of the ward.
Guardians may also be professionals who specialize in providing guardianship services. Institutions may be appointed as guardians in appropriate circumstances.
Only the following persons are not allowed to be legal guardians:
- Persons convicted of felonies
- Persons incapable of performing the responsibilities of a guardian
- Persons convicted of abuse, abandonment or neglect of a child
- Persons who have a relationship to the ward such that appointment as guardian might establish a conflict of interest
- Judges, unless there is a close family relationship
Court Supervision of Legal Guardianships
Guardians are required to keep the court informed of the activities of the guardianship. Guardians of the person of another must file an annual plan for the guardianship that has to be approved by the court. Guardians of the property of a person must file an annual accounting. Guardians must report all types of payments or benefits received in their capacity as guardians.
Annual guardianship plans report on the condition of the ward, their needs for the coming year, and how the guardian proposes to meet those needs. Annual accountings must detail all receipts and expenditures made on behalf of a ward over which the guardian exercised control.
Determining Who Needs a Guardianship
Florida law requires that a court appoint a legal guardian for any minor whose parents die or become incapacitated or for a minor who receives a large sum of money by inheritance or litigation. Minors are presumed incapable of managing their own affairs as a matter of law.
Adult guardianships can be voluntary or involuntary. An adult may recognize their need for assistance and petition the court to establish a guardianship voluntarily. An involuntary guardianship requires a finding by the court that the prospective ward is incapacitated as it relates to the purpose of the guardianship.
Situations that indicate a guardianship could be appropriate include:
- A minor with disabilities becoming a legal adult
- Abuse or exploitation of a person is suspected
- A person has mental or physical issues and cannot live alone
- A person is unable to manage their financial affairs
- A person cannot make their own healthcare decisions
Types of Legal Guardianships
Guardianships can be over the person or the person’s property – or both. They can be for a specific purpose or a specific period of time. The following types of guardianships are recognized under Florida law:
- Natural guardianship – Parents are the legal guardians of their children unless parental rights have been removed.
- Minor guardianship – Minors must be appointed legal guardians if their parents are not able to care for them.
- Emergency guardianship – Temporary guardians may be appointed by the court if there is imminent danger to a Ward’s person or property while the issue of a prospective ward’s incapacity is being decided.
- Standby guardianship – A standby guardian is an alternate guardian appointed at the request of the parents or other current legal guardians of a minor.
- Preneed guardianship – A preneed guardian is selected by a competent adult before becoming incapacitated but still requires court approval to be appointed.
Guardian advocates are special types of guardians that may be appointed for certain types of persons who have not been found to be incapacitated. Guardian advocacy may be appropriate for persons with certain developmental disabilities needing help with some but not all decision-making.
The Process for Establishing a Guardianship
The guardianship process begins with filing a petition in the appropriate court. When the prospective ward is an adult, the court will appoint an examining committee of medical professionals to evaluate the claims made in the petition and then hold a hearing to review the committee’s findings and recommendations. Additionally, the Court will also appoint an attorney to represent the prospective Ward’s interests. However, the prospective Ward is permitted to substitute their own attorney to represent their legal interests.
If there is a finding of incapacity the court will then determine whether a legal guardianship is the most appropriate solution. If there is an alternative legal tool that doesn’t remove as many legal rights, the court can select the less intrusive means of resolving the issue.
What Authority Does a Legal Guardian Have?
A legal guardian has only the authority granted by the court and must not take actions that are outside the scope of their authority. The scope of a guardian’s authority will depend on how severely a ward is incapacitated.
When a ward is completely incapable of handling any of their own affairs, the authority given to a guardian is plenary. When a ward is capable of managing some but not all of their affairs, a guardian’s authority is limited.
- Plenary guardian – The guardian may exercise all delegable rights and powers of the ward because the court has found the ward incapable of performing all tasks necessary to care for their person or property.
- Limited guardian – The guardian may exercise only those delegable rights and powers of the ward as are specifically described by the court to address only partial incapacity.
Regardless of whether a guardian’s authority is plenary or limited, there are certain circumstances in which a Guardian must petition the court for authority before performing certain actions such as selling a Ward’s real property or entering into other contracts on behalf of the ward.
Professional Legal Guardians
In Florida, a professional guardian is a guardian who has performed guardianship services for three or more wards who are not relatives. A professional guardian must be registered with the Office of Public and Professional Guardians.
Professional guardians are required to post a $50,000 fiduciary bond with the court. They must complete at least 40 hours of initial training and have to meet continuing education requirements every two years. Guardians must allow investigation into both their credit and criminal histories. And they must pass a competency exam.
Florida statutes list specific behaviors or actions by professional guardians that are prohibited and will be grounds for discipline. A professional guardian who violates the legal requirements can have their registration suspended or permanently revoked.
The Difference between a Guardianship and a Conservatorship
Guardianships and conservatorships can involve the same types of responsibilities, but in Florida, they exist for different reasons. Guardianships are established for the benefit of persons deemed incapable of managing their own affairs. In comparison, conservatorships are established to manage the affairs of persons who cannot be found and are presumed dead or terminally lost.
Conservators are required to manage the property belonging to the ‘absentee’ person with the same ‘rights, powers, and duties of a guardian.’
Are There Alternatives to Legal Guardianship?
There are some legal alternatives to guardianship that may be appropriate ways to provide the assistance required by a prospective ward without the limitations a guardianship imposes on personal freedom. Trusts, joint bank accounts, and powers of attorney can be used to help people who need assistance with property management and decision-making. Designated Health Care surrogates and statutory Health Care Proxies can be used to help people who are unable to make reasonable medical decisions for themselves.
It is important to understand that most of the alternatives to guardianship do not remove the ability to make legal decisions and can often be changed or terminated at will by the person they are designed to protect.
What to Do to Oppose a Legal Guardianship
There are three primary ways to challenge a petition for guardianship. The first is to demonstrate the prospective ward is not incapacitated and does not need a guardian. The second is to object to the suitability or qualifications of the proposed guardian. The third is to propose a workable legal alternative to guardianship.
Even when some incapacity exists, a guardianship is a significant restriction of freedom and courts are not looking to create guardianships where a lesser form of legal assistance would suffice. When a guardianship is necessary, evidence that a particular guardian is not suitable can cause a court to deny the appointment.
Terminating a Legal Guardianship
Guardianships can be terminated when the purpose for which the guardian was appointed no longer exists – such as when a minor becomes an adult or when a ward dies. A guardianship may also be terminated because the ward is no longer incapacitated.
When a ward has been restored to capacity, a guardianship is no longer needed. Any interested person can file a suggestion of capacity – including the ward. The suggestion of capacity can state that the ward should be partially, or fully restored to capacity.
The court will order a medical examination of the ward to verify capacity. If the court is satisfied the ward has the necessary capacity to have all of their delegable rights restored, the guardian will be discharged. If the court finds that some but not all capacity has been restored, the scope of the guardianship can be further limited.
Terminating a Guardian (Resignation or Removal)
Terminating a guardian is not the same as terminating the guardianship if the need for the guardianship still exists. Guardians may voluntarily resign or be removed by the court for disciplinary reasons. However, absent evidence of serious malfeasance, it is typically very difficult to remove a guardian.
When a guardian resigns or is removed from their position a court must appoint another guardian to fill the vacancy. Once qualified, the new guardian is bound by the guardianship which continues until it becomes appropriate to terminate it.
Consult a Florida Legal Guardianship Lawyer at No Cost
Legal guardianships can provide stability and protection for persons lacking the capacity to adequately manage certain aspects of their lives. But legal guardianships also take rights away from individuals and courts need to be convinced that a guardianship is the best solution before a guardian will be appointed.
Whether you are wondering if a guardianship is right for your loved one, need to challenge an existing or pending guardianship, or are thinking it’s time to terminate a guardianship the legal guardianship lawyers at Luhrsen Goldberg can help.
Serving the Sarasota, Bradenton, and Lakewood Ranch areas, the legal team at Luhrsen Goldberg is dedicated to getting the best results for their clients. Experience the difference Law Powered by Women can make. Schedule a free evaluation today.