Guardianship Process in Florida
Having a guardian appointed takes two separate court ordered determinations. The first (Incapacity proceeding), is where the court enters an order determining whether the person is incapacitated as defined by Florida law. The second (Guardianship proceeding), is where the court actually determines who will serve a guardian.
Note: All Guardians are required to be represented by legal counsel in Florida (See Florida Probate Rule 5.030(a), submit to a criminal background check, and take an 8 hour course in Guardianship duties within 9 months of being appointed.
Step 1: (Determine Capacity). See Florida Statute
Florida’s Guardianship Statutes have been written to protect our freedom and independence. Therefore, the courts presume a person has capacity until adjudicated by the courts to not have capacity. (See Florida Probate Rules 5.550 and Florida Statute 744.3201 for what must be contained in the Petition to Determine Capacity).
Petition filed: A Petition to Determine the Persons Capacity is filed with the County where the person resides Probate Courts – Mental health Division.
This petition can be filed by a family member, concerned third party, or the Counties Ault protective Services. The person petitioners has the burden to prove that the person being alleged incapacitated is incapacitated in the court’s eyes. Witnesses may very well be required to prove the incapacity.
Court Appoints Attorney: Within five (5) days of filing the petition, the courts will appoint an attorney ad litem to represent the person alleged to be incapacitated in the Incapacity proceeding and the Guardianship proceedings. In the alternative, the person’s own attorney can be substituted for the court appointed attorney. See Florida Statute 744.331(2).
Examining Committee Appointed:Within 5 days of filing the Petition to Determine Capacity, the courts will appoint a three (3) person panel to review the persons level of capacity and need for appointing a Guardian.
This examining committee is typically includes a psychiatrist, a psychologist, and a social worker. The committee members will individually meet with the person whose capacity is being determined, talk with family members, neighbors, and healthcare providers.
A Mental exam, physical exam, and functional assessment are included in this determination process.
The examining committee members will submit to the courts a recommendation. Reports of examining committee are due to the courts within 15 days of being appointed. (See Florida Statute 744.3215)
The Incapacity Hearing: All hearings are considered adversarial (meaning contested) and must be set within fourteen (14) days from filing the examining committee reports. (See Florida Statute 744.331(5)(a)), unless good cause is shown why an extension is necessary. Depending on the county in which the proceeding is filed, the incapacity hearing will be before the Judge or a General Master. The person is entitled to be at the hearing, the examining committee reports are reviewed by the Judge or General Master. Evidence and testimony is allowed to be presented at the proceeding. The Judge or General master then decide, based upon the evidence on whether to adjudicate the person incapacitated or not. If the General Master presides over the hearing, his/her recommendation of capacity is sent to the Judge who then enters an order after review, as he/she deems appropriate given the General master’s recommendation and findings.
All Incapacity Hearing proceedings are closed to the public and considered confidential in order to preserve the dignity and privacy of the alleged incapacitated person.
STEP 2: THE GUARDIANSHIP PROCEEDING
This portion of the proceedings only continue if the person has been adjudicated incapable of handling his/her own affairs or the General Master has recommended the court enter an order adjudicating the person incapacitated.
Type/Extent of Guardianship: The next step is for the court to determine whether to limit the Guardianship to defined responsibilities or make the Guardianship a full/Plenary Guardianship (Authority of Guardian over all decisions for the person).
Who can serve as Guardian: Florida resident eighteen (18) or older, a Non-Florida resident over age 18 can be appointed provided proposed Guardian is over eighteen (18) so long as he/she is a lineal descendant of the proposed incapacitated. No person who has been convicted of a felony, abuse, or is incapacitated may serve as a Guardian. See Florida Statute 744.309
Guardians Ability Reviewed: The courts also review the Guardians ability to serve in a fiduciary capacity. This means the Guardian should appear to be able to be trusted in a position of responsibility over another persons health care and financial management and decisions.
Competing Guardians Petition to be appointed: In some cases, two or more parties may want to be appointed as the Guardian. This is typical in family situations and also when the State files a petition. The immediate family can also file what is termed a “Competing Petition for Guardianship”. The proceedings are then considered adversarial. The courts then will listen to evidence from both parties and based upon the testimony and evidence presented will enter an order appointing the Guardian it believes best suited to serve in such a trusted/Fiduciary capacity. See Florida Statute 744.312 for what evidence is considered in determining who is best suited to serve as guardian.
If there are competing Guardianship petitions filed, it is recommended an attorney well versed in Incapacity and Guardianship law be retained to assist in the proceedings. This would be a specialist dedicated to Elder law and such proceedings. A general trial or litigation attorney is NOT recommended for such proceedings.
Guardian Appointed: If the courts feel the Guardian is trustworthy and qualifies to serve as a Guardian, the court will issue Letters of Administration and an Order Appointing the Guardian outlining what powers the Guardian will have over the incapacitated person’s affairs.
Bond Required : The Court will then determine what amount of Bond will be required of the Guardian of the Property. A Bond is best described as a hybrid insurance policy protecting the incapacitated persons financial matters from misappropriation or misuse by the Guardian. The amount of the Bond is left to the discretion of the court and based upon the amount of the assets involved.
Finances Restricted: Most courts order that all of the incapacitated person’s liquid assets and property be frozen by requiring placement in restricted bank accounts and requiring court order before any assets are liquidated, sold, or expended.
Guardian Reporting Requirements: Once a Guardian is appointed by the courts, the Guardian must develop 1) an Initial Guardianship Plan as to what type of care will be provided to the incapacitated, and; 2) File an Initial Guardianship Inventory within 90 days of being appointed Guardian. Such inventory must reflect balances of assets on the date the Guardianship was actually ordered opened by the court.
Costs of Guardianship: The cost of establishing a Guardianship can be upwards of $4,500.00 for legal fees, plus the costs of the court appointed attorney, examining committee and filing fees of approximately $1,000.00.
When is a Guardian Appointed: a Guardian is ordered appointed by the courts where a person does not have advanced directives in place prior to becoming incapacitated. These documents are the Durable Power of Attorney, Healthcare Surrogate Designation, and Living Will. The Durable power of Attorney and healthcare Surrogate allow a person to pre-appoint a loved-one or other trusted person to handle his/her financial and/or healthcare decisions if or when he/she becomes incapable of handling those affairs alone.
Courts Discretion to Appoint Guardian Limited: Courts must order the least restrictive means to ensure a persons affairs are managed properly. (See Florida Statute 744.331(6)(b)). Cost to draft the Durable Power of Attorney, Healthcare Surrogate Designation and Living Will is approximately $600.00 total. However in order to execute the documents a person must have mental capacity to do so, understand what he/she is signing and be able to make an informed decision at the time of signing as to who he/she wants to appoint.
This court appointed Guardian’s actions and responsibilities are closely monitored by the court. Guardians responsibilities are outlined at Florida Statute The Guardian must file accountings and reports with the court periodically. The Guardian has a duty and responsibility to protect the a person he/she is appointed to help.
Gregory G. Glenn, Esq. is a Certified Elder Law Attorney by the National Elder Law Foundation. He has practiced elder law since 1995. Prior to law school Mr. Glenn worked as a management consultant at the Big Eight accounting firm of Coopers & Lybrand, CPA’s and also at Dunn & Roth, CPA’s as a staff accountant. He has his law degree from MSU and completed his legal studies at the University of Miami School of law. His focus in elder law is on estate planning for the over 65, disability planning, probate, and Medicaid eligibility planning. His office is in Boynton Beach, Florida.