Exploring a guardianship is undoubtedly a difficult time for any family.  The Thomas McDonald Law Firm specializes in voluntary and involuntary guardianship proceedings for minors and adults and can navigate you and your loved ones through a complicated guardianship proceeding.

In Florida, a guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of an incapacitated person.  An incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements of the person.  A guardian is a surrogate decision-maker, either an individual or institution, appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities.  After adjudication, the subject of the guardianship is termed a “ward.”  

Adult guardianship is the process by which the court finds an individual’s ability to make decisions so impaired that the court gives the right to make decisions to another person. Guardianship is only warranted when no less restrictive alternative—such as durable power of attorney, trust, health care surrogate or proxy, or other form of pre-need directive—is found by the court to be appropriate and available.  To determine whether a person is incapacitated, any adult may file a petition with the court, setting forth the information upon which they base their belief that the person is incapacitated.  The court then appoints a committee of three members, usually two physicians and another person who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.  The examination of the incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.

For minor guardianship, Florida law requires the court to appoint a guardian for minors in circumstances where the parents die or become incapacitated, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount allowed by statute.

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.  An involuntary guardianship proceeding occurs when another individual files a petition in the Probate court that alleges your loved one lacks the mental or physical capacity to manage his or her person and/or property in some or all areas, as described above. 

The legal authority for guardianship in Florida is found in Chapter 744, Florida Statutes. The court rules that control the relationships among the court, the ward, the guardian, and the attorney are found in Part III, Probate Rules, Florida Rules of Court.  Together, these statutes and rules describe the duties and obligations of guardians and attorneys, as well as the court, to ensure that they act in the best interests of the ward, minor, or person who is alleged incapacitated.