*NOTE – Except in certain circumstances, I only work on adult guardianships.
There are two general types of adult guardianship governed by Chapter 744, Florida Statutes: limited and plenary. Limited guardianships permit the guardian to make only certain decisions on behalf of the ward, while plenary guardians have complete personal and fiduciary control of the ward’s life decisions.
Within limited guardianships there is a further subset: guardianship of the person and guardianship of the property. Guardianships of the person involve decision-making about such things as health care and place of residence of the ward, while guardianships of the property involve management of the ward’s real property and assets.
A guardian has fiduciary and other important responsibilities to the ward, which means he or she is responsible for diligently and responsibly making decisions about the ward’s person, property, or both. Part of this responsibility involves inventorying the ward’s property and drafting reports for the court on at least an annual basis (more often if requested by an interested person or the court itself).
Because of these weighty responsibilities, a non-professional guardian will be required to undergo a background and credit check. Fingerprints can be taken at the county sheriff’s department. A surety bond will also be required, although this may be waived by the court in the event that the ward’s estate is relatively small.
The process for appointing a guardian under the Florida Statutes is as follows:
1. Petition to Determine Incapacity and Petition to Appoint Guardian: These two petitions are filed in county court at the same time. The person who would like a guardian to be appointed or who would like to be the guardian of the individual – in these cases called the “alleged incapacitated person” – files the petition to determine incapacity in order to trigger a court-supervised evaluation process. The petition to appoint guardian (or, in the event that a person and/or his property are in immediate danger of harm or loss, a petition to appoint emergency temporary guardian) is considered in the event the evaluation process determines that the person is totally or partially incapacitated. The court will appoint an attorney to represent the alleged incapacitated person (the person has the ability to substitute different representation if he or she desires).
2. Capacity/Functional Evaluation: Within five days, the court will appoint a three-person committee comprised of mental and/or physical health experts to evaluate the alleged incapacitated person’s functionality and ability to make decisions for him or herself. They will then submit reports to the court in 15 days regarding their evaluations.
3. Hearing on Capacity/Appointment of Guardian: The court will then schedule a hearing to determine whether, based on the evaluations, the person in totally or partially incapacitated. At that time, the petition to appoint guardian will be evaluated and a guardian will be appointed (earlier if the petition was to appoint an emergency temporary guardian), with the decision-making capabilities clearly defined by the court order.
DUTIES OF THE GUARDIAN
The particular duties of a guardian depend on whether the guardianship is over the ward’s person, the ward’s property, or both. Assuming a plenary guardianship for a totally incapacitated person, the duties of the guardian include:
- Managing the ward’s property as a fiduciary and ensuring the ward receives appropriate health care and social needs;
- Writing and filing report that include inventories of the ward’s property and details regarding the ward’s residential placement, medical and mental health care, and social condition;
- Assuming responsibilities for those rights that are delegable (such as defending and bringing lawsuits, filing insurance and other claims, and managing real property). Certain rights of the ward cannot be delegated to the guardian, such as the right to vote and marry.
- Consult with an attorney to ensure that the duties and responsibilities required under Florida law are met.
TEMPORARY EMERGENCY GUARDIANSHIP
Pursuant to Section 744.3031, Florida Statutes, a person may petition to appoint a temporary emergency guardian after the petition to determine incapacity has been filed. This is appropriate in cases in which “there appears to be imminent danger that the physical or mental health or safety of the 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.” As with a regular guardianship, the duties of the temporary emergency guardian must be specifically enumerated by the court making the appointment.
The authority of an emergency temporary guardian expires 90 days after the date of appointment and may be extended for an additional 90 days upon a showing that the emergency conditions still exist. Within 30 days of the expiration of the temporary guardianship, the guardian is required to file a report with the court. If the guardianship is over property, the report must include an inventory and accounting; if it is over the person, it must include information on the residential placement, medical condition, mental health and rehabilitative services, and the social condition of the ward.