Guardianship is a legal procedure to protect the personal and property rights of an incapacitated person by having the Court appoint a guardian. There are various types of guardianships. An attorney can assist you in determining what type of guardianship, if any, is necessary. Florida law does not allow you to file a guardianship without an attorney to represent you.
A guardian is an individual or an institution, such as a bank trust department, that is appointed by the Court to care for an incapacitated person, referred to as a 'ward', or for the ward's assets.
Any adult may file a petition to determine another person's incapacity, citing the factual information upon which they base their belief that the person is incapacitated. The Court then appoints a committee of three (3) professionals to examine the person and report their findings to the Court. The Court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee determines that the alleged incapacitated person is not incapacitated in any way, the Court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing.
Any adult resident of Florida can serve as guardian. A close relative of the ward who does not live in Florida can also serve as guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Institutions such as a bank trust department, a non-profit religious or charitable corporation, or a public guardian can be appointed guardian, but a bank trust department may only act as guardian of the property. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of pre-need guardian or at the hearing.
A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward's support, and account for it by filing detailed annual reports with the Court. In addition, the guardian must obtain Court approval for certain financial transactions. The guardian of the ward's person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the Court every year a detailed plan for the ward's care.
Guardians must be represented by an attorney who will serve as "attorney of record." Guardians are usually required to furnish a bond and may be required to complete a court-approved training program. The Clerk of the Court reviews all annual reports of guardians of the person and property and presents them to the Court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.