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Florida Guardianship

Written by on Aug 10, 2011| Posted in: Guardianship Litigation

After a judicial hearing is held and the ward is found to “lack the capacity to manage some or all of his/her property or to meet at least some of the essential health and safety requirements of such person”(§ 744.102(12), Florida Statutes), the proceeding for an involuntary guardianship is implemented.  The Court may appoint either a plenary or limited guardian, depending on the extent and severity of the ward’s incapacity. 

In a plenary guardianship, all of the Ward’s delegable rights are delegated to the guardian; no rights are reserved for the Ward.  § 744.102(9)(b), Florida Statutes.  These delegated rights are found in § 744.3215(3)(a-g) and include the following: to contract; to sue and defend lawsuits; to apply for government benefits; to manage property or to make any gift or disposition of property; to determine his or her residence; to consent to medical and mental health treatment; and to make decisions about his or her social environment or other social aspects of his or her life.  A plenary guardianship is the most common type of guardianship.  There are statutory procedures in place wherein the ward may have his rights restored at a later time; however, according to a 1998 study commissioned by the Claude Pepper Foundation, such restoration of rights only occurs in 2.63% of guardianship cases. 

In a limited guardianship, the appointed guardian is appointed to exercise some, but not all, of the delegable rights listed above.  § 744.102(9)(a), Florida Statutes.  The order appointing a limited guardian must state the scope of the guardians delegated rights and duties. 

A preneed guardian may also be appointed in two instances.  First, a person designates who shall serve as his or her own guardian in the event the person becomes incapacitated or needs a guardian for any other reason.  Second, a parent may select the person(s) who will serve as the guardian of their minor children should the parent die or become incapacitated while the child is still in the age of minority.  A preneed guardian eliminates the need for prolonged litigation in the appointment of a guardian because the court must appoint the selected guardian if that person is otherwise qualified to do so, pursuant § 744.3046(7). 

A “standby” guardian may be used by the Court after a guardian is appointed.  A “standby” guardian takes on the duties and powers of the appointed guardian within twenty (20) days of the death or resignation of the appointed guardian.  However, the “standby” guardian has no immediate duties or powers.

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