Florida Guardianship Administration Explained
A guardianship is a legal process by which a Court-appointed “guardian” exercises various legal rights of a “Ward” for the Ward’s protection and welfare – the Ward is either a minor or incapacitated adult. This proceeding is established to permit a guardian to ensure the Ward receives proper care under the supervision of an appropriate individual who will make personal, medical and financial decisions for the Ward. As guardianship administration attorneys, Yelen & Yelen, P.A. establishes and oversees the administration of all types of guardianships recognized in the State of Florida. In the absence of a valid Power of Attorney, a guardianship may be necessary in order to protect your loved one.
A guardianship for a minor may be necessary if both natural parents die simultaneously and the minor child is in need of a primary guardian to accept responsibility and care for the child. When faced with an incapacitated individual, whether an elderly parent or disabled adult child, a guardianship may be necessary to manage the financial, medical and important personal decisions throughout their lifetime. Whether serving as guardian of a minor or incapacitated individual, the guardian must protect the assets and personal interests of the Ward. When devising an estate plan, you may name a guardian to care for your minor children following your death.
The most common forms of guardianship are as follows:
- Guardian of the person and property (“plenary guardianship”): when an individual is declared mentally incapacitated (unable to properly care for their own person, financial affairs and overall welfare).
- Guardian of the person: a minor’s parents are deceased and a family member or individual must assist the Ward as their legal guardian.
- Guardian of the property (of a minor): when a minor is the recipient of a court settlement of a claim over the sum of $15,000.00.
- Guardianship of the property (of a minor): when a minor inherits money or property from a deceased individual over the sum of $15,000.00.
- Voluntary Guardianships
- Foreign Guardianships
- Limited Guardianships
- Emergency Temporary Guardianships
- Preneed Guardianships
- Standy Guardianships
Guardianships of the person involve the appointment of a guardian for an incapacitated individual or a minor. If a Petition for Incapacity is filed, the Court will appoint a committee of mental health professionals who will meet with the individual in question (“alleged incapacitated person”) and render a determination of capacity. Any adult may file a Petition with the Court to determine another individual’s incapacity setting forth the facts as to why the individual is incapacitated; however, most commonly, a relative or close friend petitions the Court to be appointed as the guardian. The Court then appoints an examining committee of medical professionals to examine the individual and report their findings to the Court. The Court will also appoint an attorney to represent the alleged incapacitated person throughout the proceeding.
The Court will declare the Ward incapacitated and appoint a guardian based on the report of the examining committee and findings that the alleged incapacitated individual is not capable of exercising their rights and there are no other less-restrictive alternatives to a guardianship. A hearing will be held on the issue of incapacity the Court will determine whether the individual is totally or partially incapacitated, or not incapacitated at all. When posed with an elderly individual unable to continue making decisions for themselves, Florida probate courts will always consider the least restrictive alternative to a guardianship in order to protect the interests of the incapacitated individual.
The alleged incapacitated person becomes a Ward when the Court finds this individual is incapacitated, either totally or partially. If there are no eligible family members or friends of the Ward to serve as guardian, the Court may appoint a professional guardian. Once appointed, the guardian is permitted to make decisions on behalf of and in lieu of the Ward, and is held to stringent standards and Court oversight to ensure that the best interests of the Ward are served and maintained. The guardianship will terminate when the Ward either regains capacity or dies. The same standards of review apply for the guardian of a minor; however, a minor is required to have a guardian appointed by operation of law due to their age rather than mental incapacity. The guardianship of a minor terminates when the Ward turns 18 (the age of majority in Florida).
Guardianships of the property only involve the oversight and management of the Ward’s assets – this can include tangible and intangible assets such as bank accounts, private investments and real estate properties. These guardianships may be required when a minor child inherits property or money in excess of $15,000.00 via inheritance or the settlement of a claim involving personal injury, property damage or wrongful death. The guardianship will terminate when the Ward turns 18 and the Ward can assume ownership over the property. Florida Courts hold guardians to very stringent standards, requiring the filing of an initial inventory of assets at the inception of the guardianship, and an annual accounting of said assets every year thereafter until the guardianship can be closed.
The attorneys of Yelen & Yelen, P.A. can guide you through the guardianship administration process. Please contact our office for more information at 305-445-3721.