Guardianship

In Florida guardianship is customarily used in two situations: First, when a minor receives assets in excess of $15,000 or, second, when a person is mentally incapacitated. If a guardianship is needed because a person is incapacitated there are two hearings. The purpose of the first hearing is to determine whether the person is incapacitated. If the person is determined to be incapacitated (this person is called the “Ward”) there will be second hearing to determine who should be the court appointed guardian and what powers the guardian will have over the Ward. Often, these hearings are combined. The court has the option of appointing a limited or a plenary guardian powers over the Ward.

A person is legally incapacitated if he or she is judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of such person. F.S. §744.102(12). The court will appoint an examining committee composed of three professionals, usually a psychiatrist, psychologist, and a third professional to interview the person and file a report with the court. See F.S. §744.331(3). The court will also appoint an attorney to represent the person alleged to be incapacitated. Partial or total incapacity must be established by clear and convincing evidence. F.S. §744.331.

Any adult resident of Florida can serve as a guardian. A non-resident of the state may serve if he or she is a close family member. See F.S. §744.309. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of pre-need guardian or at the hearing. Institutions, such as a public guardian may be appointed, but a bank trust department can only be appointed as guardian of the property and not guardian of the person.

You will find answers to many of your questions about Florida Guardianship in our Florida Guardianship Quick Reference Guide.

For over 20 years, Miami estate planning firm, Rarick & Bowden Gold, P.A., has helped families protect the best interests of children with learning or mental disabilities, or elder family members suffering from dementia, Alzheimer’s, Parkinson’s and other debilitating diseases. To schedule a meeting with a Miami estate planning attorney call (305) 556-5209 or (954) 360-8242, or e-mail info@raricklaw.com .