Guardianship Frequently Asked Questions

What is a Guardian Advocate?


A Court may appoint a Guardian Advocate for a person with developmental disabilities, if the person lacks the capacity to do some, but not all, of the tasks necessary to care for themselves, their property, or their estate or if the person has voluntarily petitioned for the appointment of a guardian advocate.




How is Incapacity defined?


An incapacitated person is considered a person who has been judicially determined to lack the capacity necessary to manage at least some of their property or who cannot provide for their own health and safety.




What is a Guardian?


A guardian is a person who has been appointed by the court to act on behalf of a ward’s (the incapacitated person) person, property or both.




What is a Pre-Need Guardianship?


An adult who is competent may name a Pre-Need Guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity. The declaration must be signed by the declarant and two (2) witnesses. Often, a Pre-Need Guardian written declaration is determined and included in a Power of Attorney or Health Care Surrogate.




Who may act as a Guardian?


In Florida, a person at least 18 years of age who has an interest in the protection of the personal or property rights of the incapacitated person may qualify to serve as a guardian. An application for “Appointment of Guardian” must accompany the petition that is filed with the court. The court will review the application to ensure the guardian to be appointed will best serve the needs of the ward.




What is a Limited Guardian?


A Limited Guardian is an individual who has been appointed by the court to exercise the legal rights and powers specifically designated by court order. The court will enter this type of order if the court finds that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for their own person or property.




What is a Plenary Guardian?


A plenary guardian is an individual who has been appointed by the court to exercise all delegable legal rights and powers of the ward (the incapicated person) after the court has found that the ward lacks capacity to perform all of the tasks necessary to care for his or her own person and/or property.




What is a Voluntary Guardian?


Without the determination of incapacity, a court may appoint a guardian of the property of a resident or nonresident person who, though mentally competent, is:

1) incapable of the care, custody and management of his or her estate by reason of age or physical infirmity and

2) who has voluntarily petitioned for the appointment.

The petition shall be accompanied by a certificate of a licensed physician specifying that they have examined the petitioner and the petitioner is competent to understand the nature of the guardianship and their delegation of authority.

Generally, the guardian appointed has the same duties and responsibilities as are provided by law for plenary guardians of the property unless the voluntary guardianship is limited.

A voluntary guardianship may be terminated by the Ward by filing Notice with the court stating the voluntary guardianship is terminated. A copy of the Notice must be served on all interested parties.




What is a Public Guardian?


Florida legislature determines that private guardianship is inadequate where there is not a willing and responsible family member, friend, bank, corporation, or other individual available to serve as guardian for the incapacitated person, and the incapacitated person does not have adequate income or wealth for the compensation of a private guardian.




What type of reports are required of a Guardian and when are they due?


The Guardian is required to file reports with the Clerk's Probate Division. The Guardian of the Ward's person is required to file an Initial Guardianship Plan and an Annual Guardianship Plan. The Guardian of the Ward's property is required to file an inventory along with an annual financial return.

The initial reports must be filed within 60 days after the Letters of Guardianship are issued. The annual reports must be filed 90 days after the last day of the anniversary month in which the Letters of Guardianship were issued.




Who will review the Guardian's reports and what fees are involved?


The Clerk of the Circuit Court is tasked with the responsibility of auditing these reports. The Court may then review the Clerk’s audit.

There are no audit fees for an Initial or Annual Guardianship Plan; however, the audit fee for the Initial Inventory is $85 if the assets of the Ward exceed $25,000. The audit fee for the Annual Financial Return ranges between $20 to $250 depending on the value of the Ward's estate.




What is an Involuntary Guardianship ?


An Involuntary Guardianship occurs when another individual files a petition with the court alleging that the subject person lacks the mental or physical capacity to manage their person and/or property in some or all areas. The process is complex and filing a petition does not automatically mean a person is incapacitated. If a Guardian is appointed, the individual may lose some or all of their rights including the ability to: - Seek or retain employment - Spply for governmental benefits on their own behalf - Vote - Marry - Drive and have a driver’s license - Travel - Make medical decisions - Make Medical Decisions - Make Financial Decisions - Make Personal Decisions




What is an Emergency Temporary Guardianship?


The court may order an Emergency Temporary Guardianship for the person or property or both of an alleged incapacitated person if the court finds that there appears to be imminent danger that the physical or mental health or safety of this person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. Oftentimes, this occurs when a loved-one is diagnosed with Alzheimers or dementia and has become disoriented to the point in which their safety is in jeoparty. Alternatively, we often require an Emergency Temporary Guardianship when a loved-one is being exploited out of their money by another family member, trusted caretaker, or friend.




When is a Guardianship of the Property of Minors required?


When minors are to receive more than $15,000 in settlement proceeds, Florida law requires that the money be placed into a guardianship account. This is designed to protect a minor's settlement proceeds, even from their own parents or family. Even if the parents are appointed as Guardians of this property, courts often require that proceeds to be placed into a depository account which requires a bank to accept responsibility for the money with the understanding that no distributions will be made unless ordered by the court. In any event, the disadvantage of this is that the Guardian of a minor’s account may have to retain and pay counsel, will have to file annual reports, and pay annual fees, all generally out of the assets of the minor. Another disadvantage is that the minor will have unrestricted access to this money upon reaching majorityand often the money is then squandered by the very person it had so carefully been preserved for. A better practice is to arrange structured settlements which schedule payouts over time and do not require the creation of a guardianship account. This is often complicated as well and should be overseen by an attorney. Contact us for more information.





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