Guardianships

THE FLORIDA GUARDIANSHIP PROCEDURE

Florida Statutes 744 sets forth the laws of guardianship. A Guardian is a person who has been appointed by the Court to act on behalf of a ward’s person, property or both. A guardianship action can be filed on behalf of an adult or a minor.

  • A claim filed on behalf of an adult is usually an incapacity proceeding.
  • A claim filed on behalf of a minor can result from a settlement of a third party claim such as a personal injury. If the net proceeds exceed the sum of $15,000.00 a guardian must be appointed.
  • There are two types of guardians: a guardian of the person and a guardian of the property.

  1. INITIATING A GUARDIANSHIP

  2. Certain documents must be filed with the Court to initiate a guardianship action. These documents include an Application of Guardian, Petition for Appointment of Guardian and Oath of Guardian.

      1. FILING FEES:

      2. The Court charges a filing fee for a guardianship action. The current fee varies slightly from county to county but is estimated at $401.00. There are additional fees for an incapacity proceeding. Depending on the county there may be a charge for a background check with the Florida Department of Law Enforcement.

      3. FINGERPRINTING:

      4. The proposed guardian will need to be fingerprinted and file a fingerprint card with the court. This can be done at a local police department or some courthouses. Two forms of identification is generally required, one of which must be picture identification.

      5. EXAMINING COMMITTEE:

        In an incapacity proceeding the Court will appoint an examining committee. The purpose of this procedure is to ensure that the alleged incapacitated person’s due process rights are protected. Usually a three-person examining committee is appointed and each individual will visit the alleged incapacitated person and make a written report to the Court as to their findings of whether the person is incapacitated. The examining committee member will also recommend whether a plenary guardianship should be instituted whereby all of the Ward’s rights are removed or a limited guardianship whereby only certain specified rights are removed.

      6. COURT APPOINTED COUNSEL:

        In an incapacity case as well as a minor case in which a third party settlement exceeds the amount set forth by Florida Statute, the court will appoint an attorney from the community to represent the minor or the alleged incapacitated person. The purpose of this procedure is to ensure that the minor or alleged incapacitated person’s due process rights are protected. The Court Appointed Counsel or Attorney Ad-litem will make a written report to the Court as to their findings of whether the person is incapacitated and requires a limited or plenary guardianship. In a minor case, the Court Appointed Counsel will issue a report recommending or not recommending the proposed settlement.
      7. EVIDENCE REQUIRED FOR A GUARDIANSHIP

        In an incapacity proceeding, the threshold test for establishing the necessity for a guardianship of the person and property is that: (a) the person lacks the capacity to take those actions necessary to provide for their health care, food, shelter, clothing, personal care or other care necessary for essential health and safety requirements; and/or (b) is unable to manage or lack the ability to make appropriate decisions regarding the management of their finances.

      8. WHO MAY BE THE GUARDIAN:

    Per Florida Statute 744.309 any resident of the state of Florida who is sui juris (a Latin phrase that literally means “of one’s own laws” with a modern reference to one who is of legal age with legal capacity) and is 18 years of age or older is qualified to act as guardian of a ward. A nonresident may serve as guardian of a resident ward if he or she is a) related by lineal consanguinity to the ward; b) A legally adopted child or adoptive parent of the ward; c) A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person or d) The spouse of a person otherwise qualified under this section. Certain persons are disqualified from acting as guardian such as a person who has been convicted of a felony.

  3. THE HEARING:

  4. The Court will hold a hearing several weeks to several months after the documents to open the guardianship are filed. The proposed guardians needs to attend the hearing. The court appointed counsel often attends the hearing. At a hearing in an incapacity case the Judge will make a decision as to whether the proposed guardian should be appointed as well as the nature of the guardianship - limited or plenary. At a hearing in a minor settlement case the Judge will either approve or deny the settlement. The Judge will also execute various Orders such as an Order Appointing Guardian and Letters of Guardianship which give the Guardian the power to act.

  5. EMERGENCY TEMPORARY GUARDIANSHIP:

    Florida guardianship law also provides for an emergency temporary guardianship. An emergency temporary guardian may be appointed upon proof that either: (1) the alleged incapacitated person’s physical health and safety are in immediate danger or will be seriously impaired or (2) that their property is in danger of being wasted, misappropriated or lost unless immediate action is taken. If the court determines that an emergency exists, the emergency temporary guardian will be appointed for a period of up to ninety (90) days. A second hearing will be held to determine if there is a need for a permanent guardianship.

  6. GUARDIANSHIP ADMINISTRATION:

    1. DOCUMENTS FILED WITH THE COURT:

    2. Within sixty (60) days after the guardian is appointed, the guardian is required to file a verified initial inventory. The verified inventory lists all assets of the Ward. In an incapacity case, an initial guardianship plan must also be filed. The plan sets forth the proposed course for medical, social, mental, physical and psychological services as well as the residential setting best suited for the Ward in the coming year.

      Each year thereafter, an annual accounting is filed setting forth the receipts, disbursements and capital transactions for the prior calendar year. In an incapacity case, the guardian is also required to an Annual Report with the court which details the services being provided to the Ward.

    3. GUARDIANSHIP ACCOUNT:

      After the hearing, the guardianship funds are placed into a guardianship account. An acceptance and receipt of assets from the depository is filed with the court. During the course of the guardianship, the guardian can file a petition for the payment of various expenses. If approved, the Judge signs an Order which is forwarded to the Depository which then issues a check.

    4. GUARDIAN COMPENSATION & REIMBURSEMENT OF EXPENSES:

      Under Florida Guardianship Law, the guardian is entitled to be reimbursed for the sums paid out of pocket and a reasonable guardian fee to be paid from the incapacitated person’s or minor’s guardianship assets. This is accomplished by filing a Petition with the court.

    5. CLOSING THE GUARDIANSHIP:

      Upon filing the required documents, in an incapacity case the guardianship can be closed if the Ward regains capacity. The case is also closed if the Ward dies. In a minor case, the case is closed when the minor reaches age 18. The Court will enter an Order closing the guardianship and discharging the Guardian.

      There are many different issues that can arise during the course of a guardianship case and this article only provides a basic summary of the Florida Guardianship procedure.

      The attorneys at the law firm of Scott R. Bugay, P.A. have filed numerous probate and/or guardianship cases in over 20 Florida counties. If you have any questions about guardianship law, please feel free to contact us for a free consultation.

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