Generally speaking, in Florida there are guardianships for two (2) kinds of persons: minor children and adults who have been determined by the court to be partially or totally incapacitated. Either a minor child or an incapacitated adult might need one or both of two (2) types of guardians: guardian of the "person" or guardian of the "property." This section doesn't address the appointment of a guardian advocate for a developementlly disabled adult. Please click on the Guardian Advocacy link (on the left) to access that information.
The appointment of a guardian of the property is required when a minor child receives more than Fifteen Thousand Dollars ($15,000). An amount less than that may be distributed directly to the minor child's natural guardian or guardian of the person.
A guardian of the property is required for an incapacitated adult regardless the amount of money being received.
A guardian of the person is required for a minor child whose natural guardian is deceased or otherwise unable or unwilling to perform his or her duties as natural guardian. The natural guardians of a minor child are the biological parents, but sometimes one or both of the parents die, leaving the minor child without anyone to admit them to school, seek medical attention for them, and otherwise care for them. Sometimes a natural parent is alive but is incarcerated or mentally ill, making it necessary for a guardian of the person to be appointed by the court. In that case, the natural parent must give permission or have their parental rights terminated.
A guardian of the person is required for an adult who has been judicially determined to be partially or totally incapacitated. The first step toward the appointment of a guardian of this type is a Petition to Determine Incapacity, which triggers the formation of an examining committee who examine the individual and make a recommendation to the court as to which, if any, of the alleged incapacitated person's rights will be taken away. The court will order the least restrictive form of guardianship that is appropriate for the individual.
In order to be appointed as guardian of the person or property of a minor or incapacitated adult, an application package, with investigative fees, and Petition for Appointment of Guardian, will filing fee, must be filed with the court in the jurisdiction where the proposed "ward" lives. Once a guardian is appointed, the minor child or incapacitated adult is referred to as the "ward."
When the proposed guardian's application for appointment as guardian is approved, the court will issue Letters of Guardianship (called "Letters" for short) to the guardian as evidence that the guardian has the legal authority to act on behalf of the ward. The substance of the Letters will depend on whether the ward is a minor child, incapacitated adult and whether it is a guardianship of the person or property. Many times a guardian of the person and the property will be appointed simultaneously, again depending on the age of the ward and the assets involved.
Once appointed, a guardian of the person must file a "plan" for the ward with the court, addressing the medical and social needs of the ward; a guardian of the property must file an inventory of the ward's assets with the court. Generally speaking, these two plans must be filed annually although are some variations from county to county.
A newly appointed guardian who is not a "professional" guardian must take a guardianship course in order to complete the appointment process.
Each year, a guardian must be reinvestigated to confirm that he or she is still qualified to act as guardian. A guardian is eligible to be discharged if he or she resigns, when the minor child turns eighteen (18), the incapacitated adult dies or regains capacity. In order to be discharged, the guardian must file a final accounting that is approved by any interested persons and otherwise satisfy any requirements the court may specify.
Florida law requires that an attorney must handle guardianship proceedings. It is not possible to represent oneself (pro se) in guardianship matters, unless the guardian is also a Florida attorney. When preparing for this type of representation, one can expect to have to pay the attorney a non-refundable retainer of ten (10) to twenty (20) hours plus a cost deposit to cover fees, postage, photocopies, etc. In order to assure a good fit between the attorney and the client (potential guardian) it is always a good idea to interview 2 or 3 attorneys prior to actually retaining one.
For a more detailed discussion of the duties of a guardian, click on the underlined text --> Guardian Handbook, provided by the Broward County Probate Division of the Seventeenth Judicial Circuit.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. These materials have been prepared for general information purposes only, are not provided in the course of an attorney-client relationship and do not constitute legal advice. Internet subscribers and on-line readers should not act upon any information contained within this web site without first seeking professional counsel. Do not send information concerning any legal or confidential matter by e-mail, until you speak with one of our lawyers and receive authorization to send that information to us.