What is Guardianship and When is it Needed?

A time may come when an elderly or otherwise vulnerable adult will not be able to manage his or her own affairs. An adult guardianship is a legal arrangement in Florida that allows a trusted person (the guardian) to take legal control of the affairs of a vulnerable person (the ward). It is a big step, but it may be required in certain circumstances. A Florida estate planning attorney can answer your questions about guardianship and when it may be needed.

Adult Guardianship: Know the Basics Under Florida Law

Broadly defined, an adult guardianship in Florida is a court-supervised relationship in which a guardian exercises rights over a ward after a judicial determination of incapacity. Chapter 744 of the Florida Statutes governs the process. Some key issues include:

  • Appointment of a guardian
  • The duties of a guardian
  • Ongoing oversight of the ward
Notably, a circuit court must find that the alleged incapacitated person lacks the capacity to manage some or all property or to meet essential health and safety requirements. The court then transfers specific rights to the guardian through an order that must track the examining committee’s findings and the evidence presented at the hearing. The Takeaway: With a guardianship petition, a Florida judge decides whether someone can still handle their own affairs. If the person cannot, the judge assigns a guardian to take over specific responsibilities, sometimes all of them.

When a Guardianship May Be Necessary in Florida

By definition, a guardianship involves a person (the ward) losing rights. Florida law does not take the process lightly. Indeed, guardianships, while certainly necessary in some situations, are widely considered to be disfavored. A guardianship becomes necessary when no less restrictive alternative can adequately protect the vulnerable person. Florida law requires courts to consider options such as:

  • Durable powers of attorney;
  • Health care surrogate designations; and
  • Trusts before imposing guardianship.
All reasonable, less restrictive alternatives must be carefully considered before a guardianship is put in place. Notably, a petition for guardianship typically arises when an adult faces conditions such as advanced dementia, severe mental illness, or a traumatic injury that prevents safe decision-making. The court must determine that the person faces a real risk of harm without intervention.

Legal Incapacity is the Basis of a Guardianship in Florida

A guardianship cannot proceed in Florida without a formal incapacity determination under Stat. § 744.331. In other words, a Florida court is not going to put a guardian in place simply because family members want one. It is a big step, and there needs to be a strong legal basis. The process begins with a petition to determine incapacity. Once one is properly filed in the right court, there will be an appointment of a three-member examining committee that evaluates the individual’s cognitive and functional abilities. The committee submits written reports addressing the person’s ability to exercise rights such as contracting, managing finances, and consenting to medical care. The court must conduct a hearing and make individualized findings on each right at issue. Medical records are key in incapacity proceedings. Note: A finding of incapacity is necessary for an adult guardianship to be put into place. Without incapacity, there can be no adult guardianship.

What to Know About the Types of Guardianships and Scope of Authority in Florida

Another key point for people and families to understand is that an adult guardianship in Florida is not “one thing.” Quite the contrary, state law authorizes several forms of guardianship. That is important because each form of adult guardianship can be tailored to the ward’s needs. Here is an overview of the two main options:

  • Full Guardianship: A plenary guardian receives all delegable rights. It is the most comprehensive form of adult guardianship in Florida.
  • Limited Guardianship: A limited guardian receives only those rights the court removes based on incapacity findings. These guardianships can be narrowly tailored.
Beyond that, there are additional categories, including guardian advocacy for developmentally disabled adults and emergency temporary guardianships when immediate harm is likely. The court must define the guardian’s authority with precision, including control over property, medical decisions, and residential placement. The specific circumstances always matter.

A Guardian Must Act in the Best Interests of the Ward

In Florida, an adult guardian has certain duties and fiduciary obligations. Indeed, an adult guardian in Florida must operate as a fiduciary and must act in the ward’s best interests at all times. State law places strict duties on any person who is in the position of an adult guardian. Among other things, these responsibilities include:

  • Prudent asset management;
  • Proper recordkeeping; and
  • Full compliance with court-approved plans.
Another one of the most important fiduciary obligations is that a guardian must avoid conflicts of interest and cannot use the ward’s property for personal benefit. In Florida, courts require annual financial accountings and care plans to ensure compliance and that the ward is protected. Breach of fiduciary duty exposes the guardian to removal, surcharge, and potentially even civil liability.

How Our Florida Adult Guardianship Lawyer Can Help

Adult guardianships are complicated. Putting one into place can be stressful and overwhelming. In some cases, there are less restrictive alternatives that may be sufficient to protect your vulnerable loved one. In other cases, an adult guardianship may be necessary. At The Dellutri Law Group, PA, we have the knowledge, skills, and professional experience that people and families can rely on. Your initial consultation with our Florida adult guardianship lawyer is strictly confidential.

Contact Our Florida Adult Guardianship Attorney Today

At The Dellutri Law Group, PA, our Florida estate planning attorney has the experience needed to take on all types of adult guardianship cases. If you have any questions about guardianships and when one may be needed, we can help. Our firm helps clients navigate complex, sensitive matters involving all types of guardianships. Contact us today for a strictly confidential consultation. We provide guardianship legal services throughout Florida.