Guardianship Defined

Guardianship is required when  a person is incapacitated or a minor.  It is established via a legal proceeding through the courts in the County where a person resides who is incapacitated.

 

Guardianship can be for minors and adults. Voluntary Guardianships are when a person who is beginning to fail physically or mentally but still has capacity to make decisions but feels it is in his/her best interest to have a family member or other third party serve in  a court appointed position to serve as guardian to manage the persons financial decisions.  An Involuntary Guardianship  occurs in most instances where a person has already incapable of making informed decisions for himself or herself. In those cases a relative or other third party believes it is necessary to ensure the health, safety and welfare of the person or his/her property and initiates a proceeding to first have the person adjudicated incapacitated and then have a guardian appointed.

 

A Guardianship can be a Limited Guardianship – A limited guardian is appointed to manage a person’s property (Guardian of the Property) only, or a person’s health care (Guardian of Person) but not both.  If the Guardian is appointed to manage both the Property and Person’s care it is referred to as a Plenary Guardianship (Guardian of the Person and Property). 

 

Guardian Advocate is a type of guardianship proceeding specifically designed for developmentally disabled adults whose income and assets are limited.  It is an abbreviated form of guardianship where accountings and the need for legal counsel are not requirements.  Most often this is a proceeding parents of aging developmentally disabled adult children require  a person to be legally appointed to make decisions on behalf of the developmentally disabled persons.  This is an abbreviated proceeding because the person  must be able to retain some levels of their own decisions making processes. (See Florida Statute 744.3085)

 

There are other types of Guardianships

 

Standby Guardian for a child where a guardian is temporarily appointed in place of a parent. (See Florida Statutes 744.304).

 

Pre-Need Guardian names a person to be your Guardian in the event you become incapacitated. Most often done when a parent has numerous persons (adult children) who have equal standing to be appointed and feels it is best for the courts to oversee that adult parent's financial and healthcare decisions versus have durable power of attorney and/or healthcare surrogates appointed. The parent prefers court oversight, and wants to give the courts an idea of who he/she wants appointed. (See Florida Statute 744.3045).

 

Minor Guardianships (In most cases, Guardian of Property when a child receives in excess of $15,000 and parents are legally the child’s guardian of Person by default). (See Florida Statute 744.3021).

 

Veterans Administration Guardianships. (See Florida Statute 744.602).

 

Guardianship Avoiding Documents

Before pursuing a Guardianship or adjudication by the courts that a person is incapacitated, research should be done whether to determine if the person has a Durable Power of Attorney in place and/or a Healthcare Surrogate Designation.  If they exist, these documents will have to be brought to the attention of the courts determining the person capacity.  The courts are compelled to order the least restrictive means to help a person manage his her affairs.  (See Florida Statutes 744.1012).

 

Guardianship of the Person includes the following responsibilities:

• Determining and monitoring place of the ward’s residence

• Consenting to and monitoring medical treatment

• Consenting to and monitoring non-medical services such as education or counseling

• Releasing confidential information

• Making end-of-life decisions

• Maximizing independence in least restrictive manner  

Guardianship of the Property includes the following duties and responsibilities:

• Acting as representative payee

• Determining benefits

• Obtaining appraisals of property

• Protecting property and assets from loss

• Receiving income for the estate

• Making appropriate disbursements (Some disbursements can be done without court approval.  Other disbursements cannot be done without court order).

How long it takes to Get Court Ordered Guardianship (Start to Finish)

To establish a Guardianship can take several weeks, unless there is evidence that the person’s health, safety and/or welfare are in danger.  If that is the case, then the courts will consider a proceeding called “An Emergency Temporary Guardianship” proceeding. (See Florida Probate Rule 5.900 for requirements). This is designed to expeditiously appoint a temporarily Guardian until the Guardianship proceedings can be completed. 

Temporary Emergency Guardianship is an abbreviated proceedings where a a court enters an order appointing an emergency temporary guardian

• The court must specifically find that 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.

• The court shall appoint counsel to represent the alleged incapacitated person.
   

• In Florida, the Temporary Guardianship is defined to last  for a period of ninety (90) days. After the first ninety (90) days, an extension can be applied for, or the Formal Guardianship proceedings should have been completed to appoint the Guardian.