A guardian is a person named by the court to make personal and financial decisions for an incapacitated person. Guardianship is the process under which the guardian is appointed.

 

There is a guardianship for minors and adults. Guardianship for minors gets established when a minor is about to receive money and because of his or her minority is incapable of receiving it. Parents are the natural guardians of minors; as such, they can make personal decisions for them (e.g. regarding what schools children attend). Parents don’t need a court appointment to make personal decisions. But, if the minor is about to receive an inheritance or money from a personal injury settlement, the minor needs a guardian appointed by the court, which could be the parents. 

 

Guardianship for adults is needed when the person lacks capacity to make personal and financial decisions. Adults must necessarily go through a process of declaration of incapacity first. Only once the judge finds that incapacity exists will a guardian be appointed.

 

BOTTOM LINE: Even if you have a spouse, children, or parents, the law doesn’t assume that that person can make decisions for you. If you don’t have the proper documentation, you will need to go through the guardianship process. 

 

What Is a Guardianship Under Florida Law?

 

Under Chapter 744 of the Florida Statutes, a guardian is a person or entity appointed to exercise the legal rights of a person who is considered incapacitated. Guardianship is established by legal proceedings in Florida circuit court. (NOTE: The following information does not apply to people with developmental disabilities.)

 

Who Is a Guardian Under Florida Law?

 

A guardian is a court-appointed individual or institution (e.g., bank trust department or non-profit organization) assigned to care for an incapacitated person (known as a "ward"). Once appointed, the guardian will oversee the ward's assets and make other legal decisions on the ward's behalf. 

 

Who Qualifies to Serve as a Guardian?

 

Under Florida law, subject to certain restrictions, a guardian may be any adult who:

 

  • Has no felony convictions, AND
     
  • Is a resident of the State of Florida, OR
     
  • Does not live in Florida but is a qualified relative of the ward in question.

 

Additionally, the courts may appoint an institution such as a non-profit corporation or bank trust department as a guardian; however, an institution can act only as a guardian of the ward’s property, not the ward herself.

 

Professional or public guardians may not serve as a ward's guardian.

 

In appointing a guardian, the judge will also take into consideration any wishes expressed by the incapacitated person, either during the appointment hearing or by a ward's pre-need written declaration.

 

The court may also disqualify a prospective guardian because of an actual or even potential conflict of interest, or is otherwise unfit to be a guardian.

 

What Does the Guardian Do?

 

A guardian’s responsibilities may be categorized in two ways:

Guardianship of the ward’s person and

Guardianship of the ward’s property.

 

Guardianship of the ward’s person involves the right to make decisions that the ward is deemed incapable of making. These may include determining the ward's appropriate place of residence and medical, personal and mental care. Each year, the ward's guardian must submit to the court a physician’s report and plan of care.

 

Guardianship of the ward’s property involves keeping an accurate inventory of the ward’s property and assets. The guardian must use assets for the ward’s support, while making wise investments and financial decisions on the ward’s behalf. A guardian of property must get court approval for certain financial transactions, and the guardian must submit to the court detailed annual financial reports.

 

How Is “Incapacitated” Defined?

 

An adult is deemed incapacitated when a court determines that the person does not currently possess the ability to manage some or all of his property, or is unable to meet certain essential health and safety requirements.

 

How Are Guardians Kept Accountable?

 

In Florida, guardians must be bonded (financial institutions and public guardians excepted). They usually must complete a court-approved training program to become a guardian, and they must file detailed annual reports to the court clerk. The court meticulously reviews these reports, and it may remove any guardian not appropriately carrying out these responsibilities.

 

Is Guardianship Permanent or Temporary?

 

It depends on the ward, the guardian, and exact circumstance. If an incapacitated person recovers (partially or fully) from the condition that caused incapacitation, the ward may file a petition, asking the court to end the guardianship. If the court determines the ward has experienced significant recovery, it may restore some or all of the ward’s rights. Additionally, guardians may resign or be removed, whether due to changes in eligibility or an improper execution of duty.

 

How Does Florida Handle Guardianship for Minors?

 

Until minors come of age, their parents are their natural guardians by default and may act for the child in all areas.

 

If the parents die or become incapacitated, or if a minor receives an inheritance or settlement totaling more than $15,000, Florida law requires the courts to appoint a guardian.

 

If parents wish to designate someone as their children's guardian—in the event of their death or incapacitation—they may either appoint one in a will or file a written declaration with the clerk of the court.

 

 

Appointing A Guardian For A Person With Developmental Disabilities – Full Guardianship Or Guardian Advocate?

 

If you have a child with developmental disabilities, such as autism or Down syndrome, you may wonder how you will make decisions, medical and financial, for your child when he or she turns 18 because upon your children attaining 18, parents no longer have the legal authority to make decisions on their behalf.   Upon research and consultation with family and friend you come across the legal concept of guardianship advocates. 

 

Bypassing The Process Of Determination Of Incapacity

 

The law permits that, in certain instances, people with developmental disabilities, bypass the process of adjudication of incapacity.  Under the law, developmental disability means a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonable expected to continue indefinitely.

 

What happens when a persons diagnosed with one of the above disorders turns 18?  Who is going to make decisions for them?

 

Naturally, parents think that they will continue making decisions for their adult children with disabilities.  However, upon attaining 18 years these persons become adults and therefore able to make their own decisions.  But, how can a person diagnosed with developmental disabilities make his or her own decisions? 

 

A person with a developmental disability may not be presumed incapacitated solely by reason of his or her acceptance in nonresidential services or admission to residential care and may not be denied the full exercise of all legal rights guaranteed to citizens of Florida and of the United States.

 

If parents think that their children with developmental disability cannot make decisions and want to continue making decisions for their adult children diagnosed with developmental disabilities, they necessarily need to be appointed guardians because upon attaining 18 years a person is presumed to have full capacity to make personal and financial decisions.  Only through the courts, parents can remove decision-making ability from their adult children with developmental disability and have those decision-making ability delegated to them. 

 

Guardian Advocates Versus Full Guardianship

 

A guardian advocate can be appointed, without an adjudication of incapacity, for a person with developmental disabilities, if the person lacks the decision-making ability to do some, but not all of the decision making tasks necessary to care for his or her person or property.  In other words, there is no need for a judge to appoint an examining committee of three experts if the person with developmental disabilities is able to make some decisions.   The judge will consider the decision-making ability of the person with developmental disability concerning the following rights:

 

(a) To marry.

(b) To vote.

(c) To personally apply for government benefits.

(d) To have a driver license.

(e) To travel.

(f) To seek or retain employment.

(g) To contract.

(h) To sue and defend lawsuits.

(i) To apply for government benefits.

(j) To manage property or to make any gift or disposition of property.

(k) To determine his or her residence.

(l) To consent to medical and mental health treatment.

(m) To make decisions about his or her social environment or other social aspects of his or her life.

 

If the person with developmental disabilities has the decision-making ability to exercise some of the above rights, no adjudication of incapacity is needed, and a guardian advocate will be appointed to make decisions concerning the rights that the person with developmental disability cannot make.   In the petition, the petitioner must allege factual information on which a belief that a person with developmental disability needs a guardian advocate and specify the exact areas in which the person lacks the decision-making abilities to make informed decisions about his or her care and treatment services or to meet the essential requirements for his or her physical health or safety.

 

Once the guardian advocate is appointed, such guardian has the same powers, duties, and responsibilities of a normal guardian.  Except that a guardian advocate may not be required to file an annual accounting if the court determines that the person with developmental disability receives income from Social Security benefits and the guardian advocate is the person’s representative payee for the benefits.

 

In other words, when choosing the guardian advocate route, the petitioner (typically the parents) avoids the appointment and the costs of the examining committee.  The petitioner may also avoid the costs of hiring an attorney unless required by the court of if the guardian advocate is delegated any rights regarding property other than the right to be the representative payee for government benefits.  When appointed guardian advocate, it may not be necessary to file annual accountings every year.   In all other aspects, the process of appointment of a guardian advocate is identical to the process of appointment a guardian.

 

If you have a child with developmental disability who is turning 18 soon, you need to take the steps to become his or her legal guardian because upon attaining 18 your child with developmental disabilities is presumed to have the capacity to make decisions for him or herself.  If you believe and you can prove that your child has the ability to make some but not all important personal and financial decisions, you can be appointed your child’s guardian advocate.  This process allows you to bypass the adjudication of incapacity process and you may not need an attorney to be appointed guardian advocate (having legal counsel, however, is recommended).

 

If your child with developmental disability cannot make any medical or financial decision, then you have no option but a full guardianship, where an adjudication of incapacity is required and the hiring of legal counsel is mandatory.

 

TAKE AWAYS

 

  • There is a presumption of capacity  - Even if a person is in a coma or has been diagnosed with Down syndrome or Alzheimer’s, the law presumes that that person has capacity to make decisions
  • The only institution that can declare a person incapacitated is the court – Not the doctors not the attorneys
  • In order to declare someone incapacitated, remove decision-making abilities, and delegate those rights to a guardian, a petition must be filed, a declaration of incapacity must be found by the court, and a guardian must be appointed by the court.
  • In certain instances, a declaration of incapacity is unnecessary such as when a minor is about to receive a settlement in excess of $15,000 or when a person with developmental disabilities can make some but not all decisions concerning his or her person or his or her property.
  • To avoid the declaration of incapacity process and go the guardian advocate route, the petitioner must allege and prove that the person with developmental disability has the capacity to exercise some rights but not all.  This is key!
  • In all other instances, a full guardianship is necessary

 

Are There Alternatives to Guardianship?

 

Yes. In fact, Florida law favors these alternatives. Whenever possible, the law requires that the least restrictive option be taken, to protect people unable to care for themselves and/or their finances.

 

Competent individuals may protect themselves proactively by creating an advance healthcare directive, a durable power of attorney, or a trust that provides for incapacitation. In such cases, no guardianship may be required if that person becomes incapacitated.