Florida Guardianship Attorney

Guardianship law forms an important part of Florida’s legal framework for ensuring that the well-being and interests of the most vulnerable people in society – the elderly, minors, and those with severe mental illness – are protected. However, it is also a complex area of law, and its detailed procedures and requirements should only be navigated with the assistance of an experienced guardianship attorney.

The following provides an overview of guardianship types in Florida, the process and criteria for guardianship appointment, and how a guardianship attorney can help you make the best decision for your loved one.

What Is Guardianship?

Guardianship is essentially a legal relationship created between one person, the guardian, and another person, their ‘ward’. When someone is appointed as a guardian, they obtain the authority to make important decisions on behalf of their ward and incur the duty to ensure that their needs are met and their interests protected. Guardianship appointment is a court-supervised process, which is why it is essential to have a qualified guardianship attorney guiding you through the applicable procedures. Guardianship appointments are commonly made for elderly people with Alzheimer’s or dementia, orphaned minors, and adults with disabilities or severe mental illnesses such as schizophrenia.

Types Of Guardianship

The kinds of decisions that a guardian is empowered to make for their ward vary depending on the type of guardianship. Guardianship can be categorized in several ways, including the age of the ward, the extent of the powers granted to the guardian, and the duration of the appointment. Understanding which type of guardianship is appropriate for your loved one’s circumstances may be challenging, which is why you must consult with a guardianship attorney for more detailed advice.

Adult and minor guardianship

Florida law distinguishes between adult and minor guardianship. Adult guardianship can only be established in circumstances where an adult is no longer able to make decisions for themselves or manage their affairs responsibly – in other words, they are incapacitated. Adult guardianship is usually established in circumstances where an adult suffers from mental disabilities or severe mental illness, or is unable to communicate.

In contrast, minor guardianship does not require a finding of incapacity. Rather, it is established when the circumstances of the minor require it. In Florida law, a court must appoint a guardian for a minor when the minor’s parents have died or become incapacitated. Minor guardianship is also required when a minor receives an inheritance, legal settlement, proceeds of a lawsuit, or insurance policy payout exceeding a statutorily prescribed amount (currently, this is $15,000). The minor’s guardian is authorized to make financial, medical, and legal decisions for the child, and is responsible for their day-to-day needs and well-being, in much the same way that a biological or adoptive parent would be.

Plenary and limited guardianship

Florida guardianship law recognizes two types of adult guardianship: plenary guardianship and limited guardianship. When the court has appointed someone as a plenary guardian, they are granted the authority to exercise all delegable rights and powers of their wards. This means that any decision the ward would have had the authority to make for themselves were they not incapacitated, can now be made by their guardian.

Limited guardianship is established when the court determines that the ward still can make certain decisions for themselves. For example, a ward may be able to make decisions regarding their medical treatment but may be unable to manage their finances. Limited guardianship are favored by guardianship attorneys and the courts because they allow for a more tailored, personalized guardianship arrangement that ensures the ward retains their autonomy in matters they are still able to manage by themselves. Limited guardianship often refers to ‘guardianship of the person’ or ‘guardianship of the property’.

Voluntary and involuntary guardianship

Adult guardianship may either be voluntary or involuntary. In the case of voluntary guardianship, an otherwise mentally competent adult who is or will soon be incapable of managing their affairs voluntarily petitions for a guardianship appointment. This type of guardianship – which may be plenary or limited depending on the petitioner’s request – is often used when a person has been diagnosed with a degenerative disease. Involuntary guardianship is when a guardian is appointed after the court determines that an adult person is incapacitated.

Emergency temporary guardianship

Finally, types of guardianship may be categorized by the duration of the appointment. Minor guardianships will usually terminate when the minor comes of age. Most adult guardianship appointments are indefinite, subject to re-evaluation when necessary, but sometimes an emergency temporary guardian may be appointed. Emergency temporary guardianship lasts for 90 days. It is commonly used in conjunction with involuntary admission of a person with a substance abuse disorder under the Marchman Act, when a guardian is temporarily appointed to make decisions concerning their treatment, residence, and general affairs while they recover.

Process For Appointing A Guardian

The process for appointing a guardian varies depending on the kind of guardianship arrangement being established, and it is crucial that an experienced guardianship attorney represent you throughout the proceedings.

Petition to court

All guardianship applications begin with a petition to the court. In terms of Florida law, the person applying to be a guardian must be represented by an attorney. The content of the petition will differ depending on whether minor or adult guardianship is being established. The petition must be served on the person who is the subject of the guardianship application, as well as all other affected parties.

Examination of AIP

In adult guardianship proceedings, the person applying to be a guardian must file a Petition of Incapacity. The court will then appoint an examining committee to determine if the subject of the petition (called the ‘alleged incapacitated person’ or AIP) is so incapacitated that a permanent guardian should be appointment, whether limited or plenary. The examining committee must have at least three members, one of whom must be a physician or psychiatrist. The other two members may be physicians, psychologists, psychiatrists, gerontologists, nurses, or licensed social workers. The committee will examine the AIP and consider other relevant information before filing a report with the court.

Hearing

Once the examining committee’s report has been filed, the court will hold a hearing to consider the committee’s findings and recommendations. The proposed guardian will need to be represented by a guardianship attorney at the hearing. As guardianship constitutes a significant restriction of a person’s rights and freedoms, the court must also consider whether less restrictive alternatives are available, such as a power of attorney or health care surrogate. Following the hearing, the court must decide whether, based on the evidence considered, the person is so incapacitated that guardianship is required.

Qualifications to be a guardian

If the court decides to appoint a guardian, it will also assess whether the petitioner is qualified. Any competent adult person who resides in Florida (or, if they do not reside in Florida, are directly related to the AIP) may be appointed as a guardian, provided they are not a convicted felon. Preference tends to be given to family members, but this is not a requirement. Attorneys who are professional guardians are also frequently appointed. Those who apply to be appointed as guardians must also complete a state-approved guardianship training course.

After appointment

The court’s involvement in the guardianship arrangement does not end with the order granting the petition. Rather, the court continues to play a supervisory role throughout the guardianship. Florida law requires that guardians submit annual reports to the court, and in the case of minor guardianship, the guardian is required to obtain the court’s prior approval before making certain important decisions in respect of the minor. If a guardian fails to file a report or is otherwise failing to discharge their duties as a guardian, or is found to be abusing their powers, the court may dismiss them and appoint a new guardian.

How Can A Guardianship Attorney Assist Me?

If you are considering a guardianship arrangement for your loved one, or are seeking to be appointed as a guardian, the advice of a reputable guardianship attorney is indispensable. They will be able to assist you with a wide range of matters throughout the guardianship process, including:

• Consulting with you to determine if guardianship is the appropriate next step for your loved one, and if so, what kind of guardianship arrangement will be most appropriate;
• Preparing your petition, taking care of all court filings and managing correspondence with the court and other interested parties to the proceedings;
• Representing you at the hearing for guardianship appointment;
• Advising you of your duties to the court as a guardian, helping you to advocate for the interests of your ward, and assisting you in the submission of reports to the court;
• Advising and representing you should you need to seek to modify the guardianship order due to the changed circumstances of your ward;
• Representing you in any challenges or disputes that arise through the guardianship process.

If your loved one already has a guardian and you are concerned that they are neglecting their duties or abusing their powers, guardianship attorneys can assist you by preparing and filing a petition for the removal of the guardian.

Leading Guardianship Attorneys In Florida

To successfully navigate the complexities of guardianship law and make the best decision for your loved one, you need a highly knowledgeable, empathetic, and compassionate guardianship attorney representing you every step of the way.

The team at Astor Simovitch has over three decades of experience in guardianship law and has represented countless families in guardianship proceedings across Florida. We strive to use our legal skills and expertise to obtain the best outcome for your loved one and will help you to fully explore your options before taking the next step.

For a dedicated, responsive, and highly competent guardianship attorney, contact us today at 561-419-6095.