Frequently Asked Questions and Answers:
What is a guardianship?
A guardianship is a legal proceeding in which a Florida Probate Court will appoint a guardian to exercise the legal rights of a legally incapacitated person, also known as a Ward. An individual is legally incapacitated either due to their age (being under the age of 18) or mental incompetency. A guardian will serve as a surrogate decision-maker for the Ward to make either personal and/or financial decisions for him or her during the pendency of the guardianship.
Who can serve as a guardian?
Generally, any competent adult may serve as a guardian in Florida provided that: he or she does not have any felony convictions; is not, due to any illness or incapacity, incapable of discharging the duties of a guardian; and, is not otherwise unsuitable to perform the duties of a guardian. A guardian can be an individual (a relative or friend) of the Ward or an institution such as bank trust department appointed by the Court to monitor the Ward’s assets. Institutions such as a bank, a nonprofit or religions or charitable corporation, or public or professional guardian, can be appointed; however, a bank or trust department would likely only serve as guardian of the property.
Do I need a guardianship for my loved one?
In Florida, a guardian may be appointed for a minor child or an incapacitated adult. The type of guardianship required depends on the needs of the Ward as deemed necessary by the Probate Court. The most common purpose for a guardianship in Florida is to ensure the needs of a developmentally disabled person are met after he or she reaches the age of majority (18) and their parents no longer have the legal authority to act on their behalf. A guardianship may also be required if an adult becomes incapacitated so as to be unable to manage his or her personal and financial affairs, and has no Durable Power of Attorney in place. A guardianship will also be required for the management and oversight of property valued over $15,000.00 inherited by a minor in the state of Florida. An experienced guardianship attorney will serve as an invaluable resource in determining whether your loved one needs a guardianship.
What does a guardian do?
A guardian is appointed by the Court to serve as a surrogate decision-maker to make either personal and/or financial decisions for the Ward (either a minor under the age of 18 or an adult who is mentally or physically incapacitated). A guardian may be appointed for the person of the Ward, the property of the Ward or both (also known as a plenary guardianship). The guardian’s duties are outlined by Chapter 744 of the Florida Statutes. A guardian must act with the intention of serving the best interests of the Ward. In some instances, the Court may appoint one individual to serve as guardian of the person and another to serve as guardian of the property. Depending on the type and scope of guardianship, the Ward may retain some rights while granting the guardian authority for all other delegable rights.
How is a person determined to be incapacitated?
A person is determined incapacitated through an adjudication hearing held by the Florida Probate Court – an examining committee is appointed to assess and review the alleged incapacitated person (“AIP”) and report their findings to the Court. To protect, represent and advocate the rights of the AIP throughout the proceeding, the Court will also appoint him or her an attorney. An individual cannot be stripped of his or her civil rights unless the Judge orders for them to be removed and assigned to a guardian. During the incapacity hearing, there may be testimony presented in support of or against the AIP’s incapacity. If the Judge determines that the individual is incapacitated and needs a guardian, the Court must consider whether less restrictive decision-making options are in place to meet the needs of the individual. If none, the Court will appoint a guardian either of the person, property, or both, for the individual, thereafter known as a Ward.
Does a guardianship supersede a Power of Attorney?
Yes. A Power of Attorney (POA) is a legal document that appoints an agent to manage your affairs, such as financial and business transactions, when you are unable to manage said affairs due to mental incapacity. This document must be signed while you are mentally competent in order to be legally valid. Following a determination of your incapacity by a Florida Probate Court, the POA is no longer in effect and the Florida guardianship governs. Prior to the appointment of a guardian, the Court will take into consideration the individual’s Power of Attorney, if any, the individual’s advanced directive and health care surrogate designation to determine who he or she intended to care for them.
What is a plenary guardian?
A plenary guardian has full, total and comprehensive rights over a Ward’s person and property – this guardian has the authority to make all decisions on behalf of the Ward to serve his or her best interests. Wards in plenary guardianships are, by definition, unable to care for themselves.
Is guardianship permanent?
The pendency of a guardianship turns on the type of guardianship required for the Ward. If the guardianship is created for the property of a minor, the guardianship will terminate when the Ward reaches the age of majority (18) and the property held by the Florida guardianship is distributable to the Ward. For a guardianship of an incapacitated individual, the guardianship will terminate when the Ward regains mental capacity or dies. However, it is possible for the Ward to regain some of his or her rights during the pendency of the guardianship that were delegated to the guardian.
Do I need to name a guardian for my minor children if I die?
Yes – your estate plan does not just account for your estate after your death. Your estate plan will also include your wishes and instructions as to who will be appointed as guardian for minor children. This individual will be appointed as guardian of your minor children if you pass away or become incapacitated. In the absence of estate planning documents nominating a guardian of your minor children, the Court will make the determination as to who shall take custody and care of your children.