Florida Guardianship
(Chapter 744, F. S.)

A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. Florida's Chapter 744 within the statutes is considered Florida's "guardianship statute" and is the most common procedure used. While this most generally is applied to adults (persons over 18 years of age), this chapter requires that a guardian be appointed when a minor's parents die or become incapacitated or if a child receives an inheritance or proceeds from a lawsuit or insurance policy exceeding $15,000.

Florida law allows both voluntary and involuntary guardianships. A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily petitions for the appointment.

There are two components to involuntary guardianship under Chapter 744 for adults:

  1. A determination of incapacity (adjudication hearing), and
  2. Transfer of rights to another (naming a guardian)

Florida utilizes an examining committee to review the ability of the alleged incapacitated person (AIP) and report their findings to the court. During the adjudication hearing the court may hear testimony from anyone regarding the capacity of the person. The attorney for the AIP may present other expert opinions or testimony in support of the AIP's abilities. No one can lose his or her civil rights unless a judge orders them removed. If the court finds that the person does not lack capacity - in other words, the person is capable of exercising his civil rights - then the guardianship process ends.

Once the person's incapacity has been determined by the judge, the court must consider whether less restrictive decision-making options are in place and will meet the needs of the person or is it necessary to appoint a guardian.

It is critical to understand that Florida law prohibits the removal of the following basic civil rights:

  • To Be Represented by an Attorney (Counsel)
  • To Have Access to a Court
  • To Receive a Proper Education
  • To Be Free from Abuse, Neglect and Exploitation
  • To Remain as Independent as possible
  • To Receive Necessary Services and Rehabilitation
  • To Be Treated Humanely, with Dignity and Respect

However, the following civil rights can be removed by a Florida court during the incapacity determination process:

  • Commit a Person to a facility, institution or licensed service provider without formal placement proceeding
  • Contract
  • Dissolution of marriage, petition for
  • Driver's License, To apply for
  • Employment, Seek or retain
  • Experimental Biomedical or Behavioral Procedures or Experiments, Consent to participate in
  • Governmental Services, Apply for
  • Lawsuits, Sue and defend
  • Living Arrangements, Right to decide
  • Marry
  • Medical, Dental, Surgical and Mental Health Treatment, Consent to
  • Money and Property, Manage
  • Parental Rights, Consent to termination of
  • Social Aspects of Life, Consent to
  • Sterilization or Abortion, Consent to
  • Travel
  • Vote

Additionally during the hearing to name the guardian, the court may assign any of the following civil rights:

  • Commit a Person to a facility, institution or licensed service provider without formal placement proceeding
  • Contract
  • Dissolution of marriage, petition for
  • Experimental Biomedical or Behavioral Procedures or Experiments, Consent to participate in
  • Governmental Services, Apply for
  • Lawsuits, Sue and defend
  • Living Arrangements, Right to decide
  • Medical, Dental, Surgical and Mental Health Treatment, Consent to
  • Money and Property, Manage
  • Social Aspects of Life, Consent to
  • Sterilization or Abortion, Consent to
  • Travel

Next the court will issue letters of guardianship after the guardian signs an oath stating he or she will faithfully discharge the duties of a guardian. The AIP is now legally referred to as the "ward." The letters of guardianship should clearly list the rights that have been removed from the ward and the rights that have been delegated to the guardian.

Florida law provides for limited as well as plenary adult guardianship. A limited guardianship is appropriate if the court finds the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property; and if the individual does not have pre-planned, written instructions for all aspects of his or her life. A plenary guardian is a person appointed by the court to exercise all delegable legal rights and powers of the adult ward after the court makes a finding of incapacity. Wards in plenary guardianships are, by definition, unable to care for themselves.

Depending on which rights are delegated to the guardian, the guardian will be consider a guardian of the person, a guardian of the property, or a guardian of both the person and the property. This designation also dictates which annual reports must be reported to the court.

The duties and responsibilities for Florida guardians may be found in Chapter 744.361 - .462.

Click here to read The Florida Bar's publication on guardianship.

Florida law requires that annually consideration must be given to the restoration of rights to the person under guardianship. This process is addressed in Chapter 744.464, Florida Statutes.

Florida law provides for three broad types of guardians:

  1. non-professionals, which are usually called family guardians, who may act on behalf of his or her family member or friend, and who can serve up to two people;
  2. professional guardians, who serve three or more persons and are usually compensated for their services; and
  3. public guardians, who must meet the same requirements as professional guardians; and can only serve persons with limited financial means who have no other available person to serve as guardian.

Persons who serve two or less wards, are required to complete 8 hrs. of court approved training. Each professional guardian and public guardian must receive a minimum of 40 hours of instruction and training. Each professional guardian must receive a minimum of 16 hours of continuing education every 2 calendar years after the year in which the initial 40-hour educational requirement is met. The instruction and education must be completed through a course approved or offered by the Statewide Public Guardianship Office. The expenses incurred to satisfy the educational requirements may not be paid with the assets of any ward. This training requirement does not apply to any attorney who is licensed to practice law in Florida and is serving as guardian for 3 or more persons.

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Some Resources for the practice of guardianship are found on our Resources page

 
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