What is a guardianship?

A guardianship is a legal proceeding in the circuit court in which a guardian exercises the legal rights of a minor or incapacitated person. Guardianships are established for various reasons: An adult who lacks the ability to care for himself/herself; a minor who has received an inheritance or personal injury settlement; or a minor who is living with relatives who need to make decisions about the minor’s schooling and health care.

When is a guardianship appropriate?

A guardianship may be appropriate for an adult who is not capable of taking care of his or her financial affairs and/or personal well-being. A person may select a guardian prior to having a need for one by completing a Declaration of Pre-Need Guardian. An attorney normally assists in preparing this form. Guardianship cases are generally established when:

Someone is declared incompetent or incapacitated.

A guardianship is required for a minor who is the recipient of a court settlement over $15,000.

A minor has inherited money or real property.

There is a need by a parent to have a guardian appointed because the parent is not going to be available for a period of time, such as a mother going into the military.

What is a guardian?

A Guardian is an individual or institution appointed by the court to care for an person called a “ward” or for the ward’s assets.

Who may serve as a guardian?

Any adult resident of Florida can serve as a guardian. A relative of the ward who does not live in Florida can also serve as guardian. Persons who have been convicted of a felony cannot be appointed.
Institutions such as a bank trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed guardian.
The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of pre-need guardian or at the hearing.

What does a guardian do?

A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward’s support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present a detailed plan for the ward’s care every year.

Is a guardian accountable?

Yes. Guardians must be represented by an attorney who will serve as “attorney of record.” Guardians may be required to furnish a bond and may be required to complete a court-approved training program. The Clerk of the Court reviews all annual reports of guardians of the person and property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.

Is a guardianship permanent?

Not necessarily. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, or a minor reaches the age of 18, the court will have the ward reexamined and can restore some or all the person’s rights.

How is a person determined to be incapacitated?

A qualifying adult may file a petition with the court to determine another person’s incapacity by setting forth factual information upon which they base the belief that the person is incapacitated. The court then appoints a committee of three professionals to examine the alleged incapacitated person and report their findings to the court.
The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition.
If the examining committee finds the person to be incapable of exercising certain rights, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing if the court rules incapacity.

Where can I find more information?

Chapter 744, Florida Statutes.
For information regarding a specific case, call 386-313-4497 or email probate@flaglerclerk.com
The clerk may not give legal advice.