What is a guardian?
A guardian is an individual or institution such as a bank trust department appointed by the court to care for an incapacitated person, called a “ward”, or for the ward’s assets.
How is a person determined to be incapacitated?
Any adult may file with the court a petition to determine another person’s incapacity setting forth the factual information upon which they base their belief that the person is incapacitated. The court then appoints a committee of two professionals, usually physicians, and a lay person to examine the person and report its 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, however, 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.
Who may serve as a guardian?
Any adult resident of Florida can serve as a guardian. A close relative of the ward who does not live in Florida may also serve as a guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Institutions such as a bank trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed guardian, but a bank trust department may only act as guardian of the property. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of preneed 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 to the court every year a detailed plan for the ward’s care.
Is a guardian accountable?
Yes. Guardians must be represented by an attorney who will serve as “attorney of record.” Guardians are usually 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 guardianship permanent?
Not necessarily. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, the court will have the ward reexamined and can restore some or all of the person’s rights.
Is guardianship the only means of helping an incapacitated person?
No. Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs whenever possible.
If a person creates an advance health care directive and a durable power of attorney or revocable living trust while competent, he or she may not require a guardian in the event of incapacity
What about guardians for minors?
A child’s parents are the child’s natural guardians and in general may act for the child. In circumstances where the parents die or become incapacitated or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000, the court must appoint a guardian. Both parents or a surviving parent may make and file with the Clerk of the Court a written declaration naming a guardian of the child’s person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will in which the child is a beneficiary.
Are there any alternatives to taking care of a loved one other than a guardianship?
Since guardianships can be very time-consuming and intrusive, there are other alternatives that could be considered before starting a guardianship process. If an individual can still make decisions on their own behalf, consider speaking with an elder care attorney to set up Health Care Management or draft a Health Care Surrogate, Durable Power of Attorney, Living Trust, or Joint Tenancy. One or more of these could be a viable option for a loved one.
Is a guardian responsible for the ward’s debts?
A guardian does not pay bills or debts from his or her own assets; however, the guardian of the property is responsible for continuing to pay the ward’s bills from the guardianship assets.
Do you need special training or education to be a guardian?
Once appointed as a guardian, whether as the guardian of the person or guardian of the property, Florida Statutes require the satisfactory completion of a training course within four months of appointment. Check with your attorney or local probate court office for a list of courses. You are required to do eight (8) hours of course study to be a guardian.
Professional Guardians need to complete forty (40) hours of course study. It is followed by a minimum of sixteen (16) course hours every 2 years thereafter. Florida Professional Guardians are required to pass a competency exam.
Are background checks done on prospective guardians?
The court may require a non-professional guardian to submit (at his or her own expense) to a background investigation, which may include a criminal and credit history check. If the court determines that a criminal and credit investigation is required, then the results of that investigation will be considered when the court appoints the guardian.
For professional and public guardians, the court shall require that they, along with all employees who have a fiduciary responsibility to the ward, submit to a complete background investigation.
What happens if someone needs a guardian, but they have very little funds and no family members that can take responsibility?
Florida currently offers public guardianship programs and services through the Statewide Public Guardianship Office. There are many care centers and facilities throughout Florida that can offer a public guardian.
Does a guardianship mean someone will have to be with the person 24/7? (i.e. Nursing home)
Not necessarily. A guardianship can cover a wide spectrum of legal rights and responsibilities, depending on how it is set up. Usually a guardianship covers two areas of a person’s life, their person (medical) and their property (legal/financial). For a senior individual, this could be the result of determining a person incapacitated by a court of proper jurisdiction. Often, though, this can be prevented if a person had created a durable power of attorney and a declaration of health care surrogate prior to a person losing the ability to do so. If a person is indeed declared incapacitated and a guardianship is required, that new guardian can hire help to carry out their responsibilities to care for their loved one.
Is a guardianship like having a power of attorney?
No, a guardianship is much more extreme than a [durable] Power of Attorney (POA). An agent named in POA can carry out the wants and needs of the maker of the document, but cannot prevent the maker of the document from making their own decisions, even if the maker of the document clearly lacks present capacity. A guardianship is the only way to relieve a person from their constitutional rights to make certain decisions for themselves.
Am I required to hire an attorney to file a guardianship?
Unless the guardianship is a Guardian Advocate for a developmentally disabled person, yes.
What are the different types of guardianships?
Typically, a guardianship is instituted for a person who is incapacitated and cannot care for themselves, either temporarily or for the long term and does not have a Durable Power of Attorney in place. This guardianship is further broken down into a guardian of the person, for medical matters, and a guardian of the property, for legal and financial matters. If a guardianship requires expedited handling, an Emergency Temporary Guardianship may be requested. In the event a minor receives a large settlement from an insurance claim or inheritance, then a guardianship of the minor is instituted. If a developmentally disabled person is about to, or has, reached 18, a guardian advocate is suggested. This type of guardianship is the only type that does not require the petitioner to be represented by an attorney. A voluntary guardianship is also available, if someone feels that they cannot handle their own financial affairs and may already be beyond the ability to sign a Durable Power of Attorney. A Veteran may be placed in a guardianship if they cannot handle their own affairs and are eligible to receive benefits from the United States Department of Veterans Affairs. Finally, if a person is indigent and has no known family who is willing to help, the state may institute a public guardianship.