Guardianship

Yelen & Yelen, P.A. establishes and oversees the administration of all types of guardianships recognized in the State of Florida. In a guardianship, the Court will appoint a legal “guardian” to oversee the administration of the guardianship involving the “Ward” (either the minor or incapacitated individual). The guardian must protect the assets and personal interests of the Ward.

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, a committee of mental health professionals will meet with the individual in question (“alleged incapacitated person”) and render a determination of capacity. The alleged incapacitated person becomes a Ward when the Court finds this individual is mentally incapacitated. Most commonly, a relative or close friend petitions the Court to be appointed as the guardian. If there are no eligible family members or friends of the Ward, 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).

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.

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. 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.

Voluntary Guardianships – a voluntary guardianship involves the appointment of a guardian for a mentally competent individual to manage their property and assets due to the individual’s age or physical inability. The Court can only appoint a voluntary guardian if documentation from the individual’s physician is submitted with the Petition for Voluntary Guardianship – it must be clear that the individual is mentally competent to understand the nature of what rights are being assigned by the Petition. Guardians appointed under this process can either be plenary, that is, exercising authority over all delegable aspects of the Ward's estate, or limited to certain duties that the petitioner has requested.

Foreign Guardianships – a foreign guardianship may be necessary if an out-of-state Ward owns assets, including real estate, located in Florida which must be managed by the guardian. The Guardian must petition the Florida Court for appointment as foreign guardian in order to manage any part or all of the Ward’s property. The Petition must describe his or her appointment out-of-state, the property of the Ward and its value and show any indebtedness, if any, against the Ward in Florida to the best of the guardian’s knowledge and belief. Once appointed by the Court, the Florida foreign guardian can manage the Ward’s assets subject to Florida Guardianship law.

Limited Guardianships – in an effort for the Courts to use the least restrictive means when establishing a Florida guardianship, a limited guardianship may be appropriate to protect certain rights of the Ward. A limited guardianship differs from a plenary guardianship because one or more rights of the Ward is/are retained. For example, the Court may find that the Ward is mentally incapacitated due to mental illness but retains the specific right to vote. All other rights are delegated to the Guardian pursuant to Court Order called Letters of Guardianship. The Letters of Guardianship list the rights that have been removed from the Ward and the rights that have been delegated to the guardian.

Emergency Temporary Guardianships – an emergency temporary guardianship is designed to expeditiously appoint a temporary guardian for a 90-day period until a full guardianship can be established. This Petition can be filed by any interested adult who has grounds for concern for the safety and welfare of an alleged incapacitated individual (“AIP”) - there must be an imminent danger to an individual’s physical, mental health or safety, or that the individual’s property is in danger of being wasted, misappropriated or lost unless immediate action is taken. Following the filing of this emergency Petition, the Court will appoint an attorney to represent the AIP in the proceeding. If the Court determines that the AIP is in imminent danger and immediate action is necessary, then an emergency temporary guardian (“ETG”) may be appointed. The ETG will serve as a fiduciary and assume the duties of a regular guardian, and will handle the Ward’s finances, make medical decisions for the Ward, maintain the Ward’s affairs and protect the Ward and the Ward’s estate during the 90-day period of appointment. Generally, the ETG’s authority terminates at either 90-days or upon appointment of a permanent guardian, whichever comes first. The appointment of an ETG can be an incredibly useful mechanism when seeking to protect a loved-one.

Preneed Guardianships – a preneed guardian will be appointed upon production of a declaration (of a previously-designated preneed guardian), in a proceeding to determine an individual’s capacity. The presentation of a declaration of preneed guardian creates a rebuttable presumption that the preneed guardian is entitled to serve as guardian. In most estate plans, an individual will designate who they wish to serve this role to avoid future disputes among family members.

Standby Guardianships – a standby guardian can be appointed in an existing guardianship (whether a guardianship of an incapacitated individual or minor child) to serve as an alternate if the guardian can no longer serve or ceases to serve after appointment.

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.