What is Guardianship in Florida?

What’s the difference between a Legal Guardianship and a Guardianship Ad Litem?

The legal guardian is the type that is familiar to most people. The legal guardian assumes the responsibilities of care or decision making for a minor or incapacitated adult.

The guardian ad litem (commonly referred to as a “GAL”) does not possess the same authority as the legal designation. Ad litem is a Latin phrase meaning, “for the suit.” The ad litem guardian may only represent the ward in court during civil, custody, or other proceedings, and has no authority over the ward’s daily life activities.

What’s the difference between Voluntary vs. Involuntary Guardianship?

Involuntary guardianship in Florida is what comes to mind when most people think of guardianship rights. Involuntary guardianship is the authority awarded to the guardian to act in the best interests of an individual, without the need for consent from the ward. Involuntary guardianship is determined by the court when the ward is either unable to consent due to incapacitation of either physical or mental impairment, or it is determined that a minor is unable to represent themselves strictly because they have not yet reached the legal age for adulthood.

Voluntary guardianship occurs when a person of at least 18 years of age, who is deemed competent, willingly relinquishes their legal rights to make decisions for themselves. Typically, this is because of some physical disability. Voluntary guardianship in Florida is guided by Florida Statute Section 744.341. Guardianship can also transfer voluntarily if a person is older or physically limited and unable to manage their affairs, but is still mentally competent. A guardianship attorney in Orlando, Florida can help you determine if you require involuntary or voluntary guardianship in relation to the particular circumstances.

Adult Guardianship in Florida

Adult Guardianship, also known as conservatorship, is the authorization to represent an adult as their guardian. This allows an individual to make legal, medical, and financial decisions on behalf of another. The granting of powers in this scenario is similar to those awarded through either an advanced health care directive or durable power of attorney, but it is not limited to only a particular matter or set length of time.

If the assignment of a guardian is involuntary, then it is known as a plenary guardianship. A plenary guardianship is one through which the courts have recognized an adult as incapacitated and subsequently have a guardian appointed to them. It is a very specific designation because it excludes any wards that are minors or adult wards that voluntarily apply for guardianship.

Designating guardianship for your minor children in a legal document is always a good idea. You never know what could happen to you or your spouse so protect your family by designating a guardian! You can designate guardians for your minor children in either a Last Will & Testament or a Trust.  Our team of experienced estate planning attorneys in Orlando can help establish this or clarify any questions that you may have.

How do you declare someone incompetent for guardianship purposes?

In Florida, a petition must be filed for the evaluation of incapacity. To examine an individual, a committee is formed consisting of three members. At a minimum, it is required that one of the members of the committee be a licensed psychiatrist or physician. The remaining members must be either a psychologist, gerontologist, psychiatrist, physician, registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or another person with knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. The individual’s or family’s regular physician may not be selected for the committee. Also, any member of the judging body may not become the individual’s guardian if they are determined to be incompetent.

Once the committee is formed, they will complete a comprehensive examination of the individual including a physical examination, a mental health examination, and an assessment of functional capabilities. Each member will provide a report and a recommendation for treatment. The two possible outcomes are that the case is dismissed or that the person in question is designated as being incapacitated. The procedures to determine incapacity can be found in Florida Statute Section 744.331.

Guardianship Documents:

There are several documents relevant to the subject of guardianship, including:

• Application for Appointment as Guardian: a document filed to request a person to be appointed the legal guardian for another.
• Petition for Appointment of Plenary Guardian: plenary guardianship occurs exclusively under the particular circumstance when an incapacitated adult has a guardian appointed to them. The plenary form applies as guardian for an individual as well as for guardianship of their property.
• Petition to Determine Incapacity: this is filed to request a hearing and evaluation to determine incapacity through utilizing the three-person committee of qualified healthcare and education professionals discussed above.
• Application for Indigent Status: an assessment of a person’s income, dependents, benefits, and other variables relating to their finances. The desired outcome when submitting this form is that the individual will be recognized as being indigent, which results in court fees being waived or reduced as well as having an attorney appointed to them at little or no cost.
• Guardian Education and Background Check Requirements: this consists of an agreement signed by the applicant that explains they will submit to a background check and also enroll in and complete a guardian education course. Both are requirements for obtaining guardianship.
• Oath of Guardian: is an affidavit, signed by the guardian-applicant, attesting that they will faithfully perform the duties of guardianship bound to them in the acceptance of governing a ward.
• Designation of Resident Agent: a document that accepts the appointment of guardianship and the responsibility required with the determination thereof (which is sometimes combined with the oath of guardian form).

Resources for Guardianship in Florida:

In Florida, General guardianship information can be found in Florida Statute Section 744.

For information on developmental disabilities guardianships please see Florida Statute Section 393.12.

Florida Developmental Disabilities Council has a great resource packed with information about guardianship called “Lighting the Way to Guardianship and Other Decision Making Alternatives: A Manual for Individuals and Families.”

A good place for guardians or potential guardians to learn more about their duties can be found in the 17th Judicial Circuit Guardian Handbook.

If you have a question on guardianship or need a qualified Orlando estate planning attorney to help you with any guardianship matter, call us at (407) 636-4066, email us at info@finitylaw.com, or fill out our contact form HERE. We would love to help you out in whatever way possible!