Overview of the Guardianship process in Florida
- Need to Retain an Attorney
- Costs of Guardianship
- Petition to Determine Incapacity and a Petition to Appoint a Guardian
- Court Appointment of an Attorney for the Alleged Incapacitated Person
- Court Appointment of Examining Committee
- Hearing on Incapacity
- Hearing to Appoint a Guardian (if determined incapacitated)
- Duties of Guardian
- Fees for Guardian
- Alternatives to Guardianship
1. Need to Retain an Attorney
Florida law requires a person seeking to become the guardian for an incapacitated person be represented by an attorney. As you may surmise, there is a great deal of legal drafting associated with the process. Typically, the attorney representing the guardian charges for their time on an hourly basis. Attorney fees and costs charged to the guardian for representing the guardian in the guardianship process can typically be paid from the incapacitated person?s assets. This is a considerable relief to many guardians who cannot afford or do not want to personally pay for the incapacitated person?s guardianship.
2. Costs of Guardianship
As of 2012 the filing fees payable to the County are approximately $631.00 ($231.00 for the Petition to Determine Incapacity and $400.00 for the Petition to Appoint a Guardian). The combined examining committee fees are approximately $780.00. The court-appointed attorney?s fees are unknown, but are typically between $1,000.00 and $2,500.00 depending on the circumstances of each case and the attorney assigned by the Court.
3. A Petition to Determine Incapacity and a Petition to Appoint a Guardian
With the information received from the client, the attorney working for the person petitioning to be guardian (known as the ?Petitioner?) will draft the following forms:
Petition to Determine Incapacity;
Petition for Appointment of Plenary/Limited Guardian;
Notice of Petitions to Determine Incapacity and for the Appointment of Guardian;
Application for Appointment of Guardian;
Oath of Guardianship.
Once these forms are completed and signed by the petitioner, the petitioning attorney will file them with the court along with corresponding orders. Please note that once the filing of the Petition takes place, any existing Durable Power of Attorney is suspended and the process must go forward to the hearing.
4. Court Appointment of an Attorney for the Alleged Incapacitated Person
The court then appoints an attorney to evaluate, inform, and advise the alleged incapacitated person. The court-appointed attorney is present at the hearings and at all times represents the incapacitated person and ensures their legal rights are protected to the extent possible.
5. Court Appointment of Examining Committee
The court appoints an examining committee that is composed of three health care professionals, including a psychiatrist, who will examine the alleged incapacitated person. The examining committee members will contact the residence of the alleged incapacitated person to schedule an appointment. After the capacity exam has taken place, each member will file a report as to his or her individual finding with regards to the person?s capacity. If two out of the three examining members find no incapacity exists, all Petitions must be dismissed and the case dismissed.
6. Hearing on Incapacity
A hearing will be scheduled with a circuit judge handling guardianship matters. Notices of this hearing are sent by certified mail, return receipt requested, to all interested parties (i.e. members of the family, Veteran?s Administration, etc.). If any interested party has an objection relating to the alleged incapacitated person?s mental capacity or who should be appointed as guardian, he/she may present that objection at the hearing. The alleged incapacitated person has a right to be present at the hearing, however, the court-appointed attorney may waive his or her appearance if that person is not able to understand or communicate meaningfully. The first part of the hearing is devoted to determining whether the alleged incapacitated person is truly incapacitated. To determine incapacity, the judge considers the reports of the examining committee, the report of the court-appointed attorney, and any relevant evidence or testimony (excluding testimony or reports from the alleged incapacitated person?s treating physician). When a person is adjudicated totally incapacitated, all the rights are taken from the ward except basic rights of privacy, dignity, etc. On the other hand, a person may be determined as only having limited incapacity and only certain prescribed rights are taken away. If there is total incapacity, the guardianship is a plenary guardianship. If not all rights are removed, the guardianship is said to be limited.
7. Hearing to Appoint a Guardian (if determined incapacitated)
The second part of the hearing is devoted to determining if the Petitioner should be the guardian. The judge will consider evidence as to the Petitioner?s qualifications and determine if the Petitioner is capable of serving as a Guardian. Persons who have committed a felony or certain crimes cannot serve as Guardians. If the judge finds the Petitioner fit to be a guardian, the judge will enter Letters of Guardianship. The Letters of Guardianship evidence the Guardians authority to act on behalf of the incapacitated person. Guardianship can be of the property or the person or of both. When a person is appointed as guardian of the property, the judge will typically order a bond in the amount of the Ward?s liquid assets. An alternative to acquiring a bond is to place the majority of the Ward?s assets in a restricted depository account whereby the funds cannot be withdrawn without an appropriate court order.
8. Duties of Guardian
Within sixty (60) days of Letters of Guardianship being signed, the Petitioner/Guardian must complete and file an Initial Plan of the Person and Verified Inventory. The Initial Plan of the Person outlines the Guardian?s plan for the Ward with respect to the Ward?s residence, health care, physician?s, social activities, etc. The guardian is responsible for managing the Ward?s assets. As such, the Guardian must file with the Court a Verified Inventory evidencing all of the Ward?s assets as of the date the Guardian was appointed. A guardianship account is established and titled as follows: ?Guardianship of (Ward?s name), (Guardian?s name), Guardian.? Each year thereafter, an Annual Plan of the Person and Annual Accounting must be filed. Please be advised that the clerks of the court review and audit the Annual Reports and will question all monies being deposited and disbursed from the guardianship accounts. Therefore, it is extremely important that a detailed record and corresponding documentation be kept of all financial transactions. The court will readily address any detection of misappropriation of the ward?s assets or failure to comply with court requirements and appropriate sanctions imposed. A guardian is also required by statute to comply with guardian education requirements. A plenary guardian of the person and property is required to complete an 8 hour training class. Upon your appointment, we will provide you with information regarding the time and place of that class. Additionally, background checks and fingerprint cards will be necessary.
9. Fees for Guardian
Persons serving as guardians are typically entitled to a fee for their time in serving as a guardian. However, the taking of a fee is not required. Fees are typically based upon a reasonable hourly rate as determined by the court.
10. Alternatives to Guardianship
Florida law provides that guardianships are typically the last resort and if a least restrictive alternative exists, there is no need for a guardianship. Examples of least restrictive alternatives consist of health care proxies, health care surrogates, durable powers of attorney, and trusts.
Attorney Representation for Guardianship of Minor Children
My law firm assists clients throughout Central Florida in Guardianship cases. The need to establish Guardianship of a child often is the result of a family tragedy, and can be a difficult time for families. I understand the sensitivity of these situations and will provide you with compassionate counsel focused on a positive outcome.
By law, parents are the child’s legal guardian. Guardianship of a minor is a proceeding in the circuit courts of Florida that grants legal authority over the child to someone other than the child’s parents if their parents are unable to raise them or are deceased. The guardian must act in the best interest of the child’s welfare and well-being, and may also be the child’s fiduciary. Guardianship is subject to court oversight.
For parents with minor children, it is especially important that they have an estate plan that provides for these protections in advance. When such a plan is not in place, the court is required to step in. Florida law obligates the court to appoint a guardian for a child when:
• The child loses both parents, or both parents become incapacitated;
• A child receives an inheritance, insurance proceeds or a legal settlement exceeding $15,000. In this instance, the natural parent can serve as guardian of the property for the minor child.
Who Can Petition for Guardianship of a Child?
Members of the family or another person interested in the child’s welfare may petition to seek Guardianship through the court. The person appointed guardian of a child’s assets does not need to be the same person who cares for the child personally.
Attorney Alec Prentice can help you understand how Guardianships work and how to navigate the legal process smoothly and efficiently. Each case demands experience and understanding of the details, facts, complications, and circumstances that arise.
Pre-need Guardian for a Minor
Parents may also name someone to act as a of Guardian for their minor children in a nomination of Guardian for Minor Children document should both parents become incapacitated, or upon the death of the last surviving parent. This legal document tells the court your preference of the individual(s) to have legal responsibility for your children’s person and/or property.
Do you have questions regarding the appointment of a guardian for a child?
Protecting the rights of a minor child is an important part of my practice, and I will provide you with knowledgeable legal counsel in all Guardianship matters. I have significant experience with setting up Guardianships for minor children, and understand the many scenarios presented by financial, legal and personal needs of children.
If you wish to become a child’s guardian, I can assist you with filing the necessary legal paperwork, handle any disputes that may arise, and help you fulfill your legal duties. I also represent clients in contested Guardianship cases.
Make these important decisions for your children now
Do you have a plan in place for your children if something were to happen to you and your spouse? Who would you appoint to serve as guardian of your child, if suddenly you could no longer care for them? I can help you put a proper plan in place for your peace of mind and for your children’s future.
Guardian Advocacy and Alternatives
What is a Guardian Advocate and how does it differ from a full Guardianship?
When a child turns 18, the parents no longer have the legal authority to make decisions on their behalf. Guardian Advocacy is a process under §393.12 of the Florida Statutes for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf.
Unlike a full guardianship, a court does not have to declare the person with a developmental disability incapacitated. Instead, the focus is on the “decision-making” ability of the individual. The annual reporting requirements of a Guardian Advocacy tend to be less detailed than a full guardianship. In some cases, it is not necessary to retain an attorney to file the initial Guardian Advocacy petition or to provide oversight for the duration of the guardianship.
Who is developmentally disabled?
Under §393.063(12), Florida Statutes, a person is considered to have a “developmental disability” if he or she has (1) been diagnosed with mental retardation, cerebral palsy, autism, spina bifida, Prader-Willi, Down or Phelan-McDermid syndromes, (2) that manifested before the age of 18, and (3) constitutes a substantial handicap that can be expected to continue indefinitely.
Are there different types of Guardian Advocacy?
Yes. You can apply to be Guardian Advocate of the Person, the Property or both. A Guardian Advocate of the Person can seek to make personal decisions, including determining residence, consenting to medical or mental health treatment, and making social decisions. A Guardian Advocate of Property can ask the court to make property decisions, like contracting, suing and defending lawsuits, and managing property or making gifts. Generally, both can request the right to seek government benefits.
Are the powers of a Guardian Advocate different than the powers of a full guardian?
No. A Guardian Advocate has the same powers and duties as a guardian under chapter 744, Florida Statutes, limited only by the court’s order that sets out the types of decisions delegated.
Once I am appointed Guardian Advocate, what are my responsibilities?
Even if you are the parent of the person with developmental disabilities, as a Guardian Advocate you are taking on fiduciary duties and must answer to the oversight of the court. Your rights as a Guardian Advocate are limited by the Order and by the type of Guardian Advocacy. If you need greater rights, you will need to seek further approval from the court. In addition, there are certain decisions that cannot be made without prior court approval, like moving the residence of the ward outside of the county.
Within 4 months of appointment, you may need to complete a court-approved guardianship education course. Occasionally, the court will waive this requirement.
A Guardian Advocate must file an Initial Report within 60 days of appointment setting out the mental health, medical, social and personal care service needs of the person with developmental disabilities and how those will be met. A similar report needs to be filed with the Court annually (within 90 days from the anniversary date of appointment.)
A Guardian Advocate of the Property may have additional duties. For instance, a more thorough accounting of property is required annually unless the only property is public benefits.
Do I need an attorney to become a Guardian Advocate?
Not necessarily. Florida law no longer requires that you have an attorney unless you are delegated property rights in addition to the right to be representative payee of government benefits. Many of the forms can be found online. Before ordering a Guardian Advocacy, the Court is required to appoint an attorney for the person with a developmental disability to protect his or her interest. If that person has assets, the attorney will be paid from those.
Are there benefits to having an attorney?
Not only can an attorney help you with the forms, but he or she will guide you through the court system and make sure you understand your responsibilities as a Guardian Advocate. Even before you file, an attorney should inform you of alternatives to Guardian Advocacy and determine if a less restrictive alternative is available. The court is required to make that same determination, which could result in denial of your petition.
Are there alternatives to Guardian Advocacy?
For people with capacity:
Advanced Directives: Written in “advance” of need, the following are documents that express a person’s desire or give decision-making authority to someone who is trusted. In each case, the person must have the mental capacity to understand what they are doing at the time the directive is signed. Each has legal requirements for both the contents and validity.
- Durable Power of Attorney: If a person has the capacity to understand the transfer of decision-making rights to another, a durable power of attorney may be appropriate. This is a legal document that allows the “grantor” to give decision-making rights to an “agent” (also known as “attorney-in-fact.”) The rights granted can be as broad or as limited as the law allows and can include health care decisions. A power of attorney is “durable” when it is intended to continue even if the grantor becomes incapacitated.
- Health Care Surrogate: This is a written document that names one or more people to represent you in health care decisions if you become unable to make them.
- Living Will: This document sets out the maker’s wishes for the withholding or withdrawal of life prolonging procedures in the event of a terminal condition.
For people with limited capacity:
- Medical Proxy: Under Florida Statute §765.401, a medical proxy can make health care decisions for an “incapacitated or developmentally disabled patient” if there is no advance directive or, if there is an advanced directive, no surrogate is available to make health care decisions. The statute does not require any legal action or document for appointment as “proxy.” Instead, there is a statutory priority set forth, starting with a guardian, then moving to spouse, adult child, parent, adult sibling, adult relative “who has exhibited special care and concern,” close friend, and finally a social worker selected by a bioethics committee.
- Client Advocate: Under §393.0651, if a parent is unavailable, a family member or friend may be appointed by the support planning team as the official client advocate for a person with developmental disabilities who receives services through the Agency for Persons with Disabilities. This does not result in any legal authority, but allows the client advocate to participate in decisions related to services.
- Co-signer of Bank Accounts: If a bank account is set up to require more than one signature, this is a way to exercise some control over expenditures while a co-signer is learning financial skills. - Representative Payee: The Social Security Administration may appoint a representative payee to receive and manage benefits for another. The “rep payee” must account for these benefits annually.
- Parent Representative: Ordinarily, when a child in the public school system turns 18, parental rights are automatically transferred to the child. If the student does not have a guardian and also does not have the ability to provide informed consent on his or her educational program, educational regulations provide that the parent can be “appointed to represent the educational interests of the student.” In any event, the school should use common sense in allowing a parent to continue to participate in IEP meetings.
What should I do if I have a guardianship from another state?
If the ward moves to Florida, the out-of-state guardian should notify the Florida court in the county of the ward’s residence. Under §744.306, the guardian has 60 days from the change of residence to file an authenticated copy of the guardianship order. If this is done, the court must give “full faith and credit” to the order. You may need a Florida attorney to assist, or to provide oversight of the guardianship and its annual reporting requirements.
