Guardianship Provisions under Florida Law

Florida Guardianship Law

Florida Statutes, Chapter 744 contains all the provisions under Florida law for the guardianship of a ward. A ‘ward’ is the person to whom a guardian has been appointed. A ‘guardian’, just to be clear, is a person appointed by a court to act on behalf of a ward’s person, property, or both.

The State of Florida has gone out of its way to make it clear what its intent is behind setting up a guardianship. Specifically, in Florida Statute 744.1012, it states:

‘The Legislature finds that adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary. The Legislature further finds that it is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs. Recognizing that every individual has unique needs and differing abilities, the Legislature declares that it is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.

I have quoted the entire statute as I feel it is important to see the State of Florida’s intent behind passing all the laws pertaining to guardianships. In setting up a guardianship, courts have taken the route to set up guardianship in the least restrictive means possible for the ward. This is important to keep in mind when dealing with guardianship.

Florida statute 744.105 allows all costs to be paid out of the ward’s estate (ward’s property). If the ward owns many different types of property, the court may direct what specific account(s) the costs are to come out of.

The court may also appoint a person known as a ‘monitor’. A monitor is a person appointed by the court to provide the court with information concerning a ward. The monitor, once appointed, may investigate, review documents, speak to the ward and seek other information and report their findings back to the court. A monitor may be appointed under normal procedures (with proper notice to the guardian and ward) or in an emergency situation. If based on the monitor’s findings, the court needs to enter any further orders to protect the ward’s interests, the court may do so.

Under Florida Statute 744.108, a guardian and their attorney are entitled to reasonable fees for the services provided. The fees will be calculated based on the time required, the difficulty of the services provided, the results of the services, and the experience of the guardian and attorney. For more information on what a court may take into account in determining the fee, please read the statute itself as there is a list of items to be taken into account. This has become a profitable area here in Florida so the legislature has rules regulating who may serve as a Professional guardian. To learn more about becoming a Professional guardian, please review statutes 744.1083 and 744.1085.

Types of Florida Guardianships

There are several types of guardianships in Florida enumerated in Part III of Chapter 744 of the Florida Statutes. The purpose of this section is to identify the different types of guardianships available in Florida and summarize what each type entails.

Natural Guardians

the mother and father are natural guardians of their biological children and their adopted children. If one parent dies, the surviving parent remains the sole natural guardian, even if they remarry. If the mother and father divorce, then the parent with primary custody is the natural guardian. If the parents share custody, then both parents remain natural guardians. If a child is born out of wedlock, then the mother is the natural guardian unless a court order states otherwise. The natural guardian may not use the child’s property for the guardian’s benefit or to satisfy the guardian’s support obligation to the child.

Guardian of Minors

the parent, sibling, next of kin, or another person interested in the minor’s welfare may petition the court for guardianship. If appointed by the court, the guardian will have the authority of a plenary guardian (i.e. no limitations). The court may appoint a guardian ad litem for a minor in a case where the minor has a claim which is being settled for more than $15,000. However, the court must appoint a guardian ad litem for the minor if the gross settlement equals or exceeds $50,000. The guardian ad Litem’s duty is to protect the minor’s claim and interest in the case.

Emergency Guardian

the court may appoint an emergency temporary guardian for the person and/or property of the ward if there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated or lost unless immediate action is taken. The powers and duties of the emergency guardian must be specifically enumerated by a court order. The authority of the emergency guardian expires 90 days after the earliest of (i) the date of appointment or (ii) when a guardian is appointed.

Standby Guardian

a standby guardian is a backup guardian. They are empowered to assume the duties of a guardian on the incapacity, death, removal, or resignation of the currently serving guardian. Upon assuming the duties of a guardian, the standby guardian shall petition the court for confirmation of appointment and letters of guardianship.

Preneed Guardian for Adults

any adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of their incapacity. The declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time. The preneed guardian may be filed with the clerk of court. Should a guardianship ever arise in the future, the clerk will present the preneed guardian to the court? However, a court is not bound to name the preneed guardian as guardian if they are unqualified to serve. However, there is a rebuttable presumption that the preneed guardian is entitled to serve.

Preneed Guardian for Minors

The preneed guardian for a minor is the same as the preneed for adults except that the parents of the minor make the declaration and the declaration must be filed with the court. This is usually taken care of in the Last Will and Testament of the parents.

Guardian Advocate

the court may appoint a guardian advocate for a person with developmental disabilities if the person lacks the capacity to do some, but not all, of the tasks necessary to care for themselves or their property. Parents who have children with mental disabilities use this type of guardianship frequently. It is a less restrictive means of obtaining a guardianship.

Who May Serve as a Guardian in Florida

In Florida, guardianships are quite common due to the size of our elderly population. One question often asked is who may serve as the guardian of an estate. Florida law allows many different types of people and organizations to serve as the guardian of someone’s estate. This blog’s intent is to summarize who may serve as the guardian.

Any resident of Florida who is competent and at least 18 years of age or older is qualified to serve as the guardian of the ward. A nonresident of Florida may serve as a guardian if he/she is (i) related by blood or marriage to the ward or (ii) a legally adopted child or parent of the ward. This means your brother or brother-in-law may serve as your guardian.

More importantly, you may not serve as a guardian if (i) you have been convicted of a felony, (ii) you are incapable of discharging the duties of a guardian, (iii) you have been found guilty of committing abuse, abandonment or neglect against a child, (iv) you have been found guilty of any offense under Florida Statute 435.04 (I have provided the link to this list as it is quite long), or (v) if the court finds that a conflict of interest could occur.

A bank, savings, loan, or trust company may serve as the guardian of the property as long as they have the ability to exercise fiduciary powers within the State of Florida. A nonprofit corporation may be appointed as the guardian of the ward. If the nonprofit charges fees to the estate of the ward, they must employ at least one professional guardian. Finally, a health care provider may not be appointed as the guardian unless the court specifically finds that there is no conflict of interest with the ward’s best interest.

In considering who to appoint as the guardian of the ward, the court will give preference to someone (i) who is related by blood or marriage to the ward, (ii) educational, professional, or business experience relevant to the nature of the services being sought, (iii) has the capacity to manage the financial resources involved or (iv) has the ability to meet the requirements of the law and the unique needs involved in the matter. The court will also consider the wishes expressed by the incapacitated person expressed in their preneed guardian. If the person is a minor over the age of 14 years, the court will consider their preference as well. Finally, the court will consider as a guardian anyone who is named in a last will and testament in which the ward is a beneficiary.
Anyone interested in serving as the guardian must complete an application to serve as guardian of the ward and list their qualifications to serve as guardian. A court may then require any nonprofessional guardian to undergo a criminal and credit background check. To start that process, the guardian must have their fingerprints taken by the Department of Law Enforcement. The person who applies to be the guardian must pay for all the expenses of the screening out of their own assets, not the ward’s assets.

Finally, once a guardian is appointed by the court, they must obtain a minimum of 8 hours of education which covers (i) the legal duties of a guardian, (ii) the rights of the ward, (iii) the availability of local resources to aid the ward and (iv) the preparation of habilitation plans and annual guardianship requirements.

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