Florida Guardianship Attorneys
Helping Clients with Incapacity Matters
Our compassionate and skilled legal team at Adrian Philip Thomas, P.A. proudly assists clients throughout the state of Florida with complicated guardianship administration matters. We understand that as individuals age and become incapacitated, it might be necessary to petition for guardianship to ensure their best interests are protected. Under Florida Statute 744.3201(a), any adult person can petition the court to determine the incapacity of another individual. However, in order to avoid potential abuse and misuse of the procedure, the statute also provides that attorney’s fees and costs can be assessed against the petitioner if the court finds that the petition was filed in bad faith.
How to Petition to Determine Incapacity in Florida
The petition for Florida guardianship administration should be filed with the probate court in the county where the alleged incapacitated person (AIP) resides. While each court has slightly different rules and procedures, at a minimum the petition must be signed under oath, identify the petitioner’s name, age, address, and relationship to AIP, and identify the AIP with the same details. The petition also has to state the primary language spoken by the AIP, the grounds for belief that the AIP should be examined, any other possible witnesses who would know the facts, and the name of the AIP’s physician, if known.
The petitioner must also identify which rights the AIP is incapable of exercising, such as marriage, voting, and having a driver’s license. Lastly, the petition should include the names and addresses of next of kin.
What Happens After I File the Petition to Determine Incapacity?
Courts must appoint an examining committee within five days after the petition for guardianship administration has been filed. The committee consists of three members, one of whom must be a psychiatrist or physician. The other two members can be either a psychologist, a gerontologist, another doctor, a nurse, a licensed social worker, or a person who the court believes can render an expert opinion on the matter.
Members of the committee cannot be related to or associated with each other, with the petitioner, with the AIP, or with any of the attorneys. Committee members must file affidavits with the court saying they have completed courses required to be on the examining committee. Then, within 15 days of their appointment, each examining committee member must individually examine the AIP and submit a report and finding to the court, upon which it will base its decision. A copy of the report must be served to the petitioner and the attorney for the AIP within three days of the report being filed and five days before the hearing.
The court will appoint an attorney to represent the AIP and the clerk of court will serve the notice of the hearing on the petition on the AIP and any other interested person outlined in the petition. The notice must state the time and place of the incapacity hearing and whether the court finds the AIP to lack the capacity that a guardian may be appointed.
What to Expect at the Incapacity Hearing
The court will set the hearing date, which “must be set no more than 14 days after the filing of the reports of the examining committee members unless good cause is shown.” Although the AIP is required to be at the hearing, their attorney can waive the appearance. The burden of proving incapacity is on the petitioner. The incapacity hearing is an evidentiary hearing where witnesses can be called, and evidence can be admitted on the record. The examining committee members and other witnesses can also be called to testify.
The AIP’s attorney can offer evidence that there are alternatives to Florida guardianship, such as a trust that holds the AIP’s assets and or if there is someone else who can serve as trustee, or the AIP has a health care surrogate who can make medical decisions on their behalf.
After the court considers all of the evidence presented, it will adjudicate the AIP an incapacitated person if there is clear and convincing evidence that a person is incapacitated and there is no alternative to Florida guardianship. The incapacity can be limited or plenary (full) and can also pertain to the person and/or the property. Once the court has entered the order, the AIP becomes a “ward” and retains only those rights not removed by the court. The hearing must be recorded by a court reporter and the court’s findings are subject to appeal.
The order adjudicating the AIP incapacitated constitutes proof of incapacity until further order of the court. Once ordered, the matter shifts from mental health to Florida guardianship and the process of appointing a guardian commences.
There is a procedure to have a temporary guardian appointed on an emergency basis if a situation arises that requires guardianship authority to make crucial decisions for an incapacitated individual. The court must find that there is a risk of “imminent danger” that the physical or mental health or safety of the AIP will be impaired by delay or that the AIP’s property is in danger of being wasted or misappropriated unless immediate action is taken by the court. The emergency temporary guardian (ETG) is authorized to act on behalf of the AIP for 90 days or until a permanent guardian is appointed, whichever occurs first. An additional 90-day extension may be granted. The ETG must file a final report within 30 days after the expiration of the temporary guardianship and must be served on the successor guardian.
Who Can Serve as Guardian of the Ward?
The court can appoint anyone who is “fit” and “qualified to act” as guardian, regardless of whether that person is related to the ward. However, the court must give preference to a person related by blood or marriage to the ward. The court looks at factors like education, ability to manage finances, and any other factor it feels is relevant to the ward’s situation. The court must also consider the wishes expressed by the incapacitated person. A pre-need declaration of guardian is a form that someone can execute prior to becoming incapacitated. It effectively informs the court who that person would want to serve as their guardian in the event they become incapacitated in the future.
Guardianship of Property
There are two forms of Florida guardianship: guardianship of the property and guardianship of the person. While they are often both required, there are instances where only one is necessary. The guardian of the property has a duty to round up and take control of the assets of the ward. This includes bank accounts, stocks, and real estate.
The guardian must file an initial inventory and verify under oath that it is accurate and complete. The assets are placed in the name of the guardianship and it is the guardian’s responsibility to ensure that the assets are safeguarded and spent appropriately for the ward’s benefit.
Annual accountings are required to be filed with the court and are subject to court approval. In addition to managing the ward’s assets, the guardian of the property can prosecute or defend causes of action against the ward. The guardian of the property has certain powers that they can exercise without court approval and other powers that require court approval.
Guardianship of a Person
Guardianship of the person is a more intrusive and cumbersome form of guardianship than a simple guardianship of property. When a person has been adjudicated incompetent by mental health professionals or is deemed incompetent by the law, then the state will appoint a guardian who will watch over and make major life decisions for the ward until the reason for incapacity no longer exists. The guardian makes crucial decisions that impact the ward, such as their residence, visitation, medical care, socialization, and travel. Guardians must file annual reports with the court to advise the court on the status and health of the ward.
Can Guardianship of Property Be Granted Without Guardianship of the Person?
There are several instances where only guardianship of the property is required. For example, if a minor is to receive property over $15,000 in value, then a guardian will be required to protect that minor’s property even though a parent is alive and therefore no guardianship of the person is required. Sometimes an adult will have documents in place that make a guardianship of the person unnecessary, such as a health care surrogate. But they may have assets in sole name and lack the capacity to manage them any longer.
The most common example of when only guardianship of the person is required is when the ward created estate planning documents that eliminate the need for a guardianship. The most common of these is a “living trust.” By placing assets in a trust and then designating a string of successor trustees, the person creating the trust has effectively circumvented the need for having a guardianship of the property. In this scenario, if a guardian of the person is appointed, then that person will work with the trustee to ensure that the ward is properly taken care of. The guardian will determine what the ward’s living arrangements and expenses are and then the trustee will pay those expenses from the trust assets.
Plenary Guardianship vs Limited Guardianship
In a plenary guardianship administration, all delegable rights have been delegated to the guardian; no rights have been reserved to the ward. In a limited guardianship, some delegable rights have been delegated to the guardian while the ward reserves other rights. For example, in a limited guardianship administration the ward can reserve the right to make decisions about where they want to live but may lose the right to marry or to enter into contracts.
How do Florida Guardianship Administrations End?
Sometimes guardianship administration ends because the ward dies. Other times they end because a child has reached the age of adulthood. They can also end because the conditions that gave rise to the guardianship are no longer present. For example, someone suffering a mental infirmity might be able to have their capacity restored.
Request a Consultation with Our Florida Guardianship Lawyers
Florida law requires guardians to be represented by an attorney, which is why you should immediately reach out to Adrian Philip Thomas, P.A. to get assistance from our seasoned legal professionals. We have represented more than 3,000 clients in estate-related disputes, both prosecuting and defending, with a wide variety of causes of action. Our boutique law firm has a breadth of experience unique and attorneys with varied backgrounds, making them extraordinarily well-suited to assist with this particular area of the law.
Adrian and Jeff, thank you to BOTH of you for all your hard work, diligence, PATIENCE, advice, time, and effort- V.F.
Adrian - you delivered as Dan promised you would.- J.M.
Thank you, thank you, thank you.- J.A.
Thank you for your expertise and guidance in resolving my case.- D.F.