When someone is unable to care for themselves due to age, disability, or illness, guardianship provides a structured framework for their care and support. In Florida, guardianships can be established for both minors without capable parents and adults who cannot care for themselves or have become incapacitated.

The Florida court system recognizes two primary types of guardianship authority:

• Guardianship of the person: Involves making decisions about personal matters such as healthcare, living arrangements, and daily care
• Guardianship of the property: Focuses on managing financial affairs, including assets, income, and expenses

Many guardians in Florida hold both roles, though the court may sometimes appoint different individuals to handle each responsibility based on the specific circumstances.

When is Guardianship Necessary?

Guardianship becomes necessary when an individual is unable to make informed decisions about their personal welfare, medical care, or financial matters. The Florida courts don’t decide to establish guardianship lightly. It’s considered only when no less restrictive alternatives exist.

For minors, guardianship typically becomes necessary when:

• Parents have passed away
• Parents face incarceration or prolonged absence
• Parents suffer from substance abuse issues or severe mental illness
• Parents have been deemed unfit through court proceedings

For adults, guardianship may be required due to:

• Severe cognitive decline from dementia or Alzheimer’s disease
• Developmental disabilities that limit decision-making capacity
• Traumatic brain injuries or other severe medical conditions
• Mental illness that compromises judgment and self-care abilities

Florida law emphasizes that guardianship should preserve the individual’s right to self-determination whenever possible. This means allowing the person under guardianship (the ward) to participate in decisions affecting their life to the extent they’re able.

Types of Guardianships

Adult Guardianships

Adult guardianships in Florida provide protection for individuals who have lost capacity due to age, injury, or disability. These arrangements give legal authority to a guardian to make necessary decisions when the ward cannot do so independently.

The Florida courts recognize several levels of adult guardianship:

• Plenary guardianship: Grants full decision-making authority over all aspects of the ward’s life
• Limited guardianship: Restricts authority to specific areas where the ward lacks capacity, allowing them to retain rights in other areas

Let me share an example: I recently worked with a client whose mother could still manage her daily routine and social activities but struggled with complex financial decisions after a stroke. We established a limited guardianship that preserved her independence in personal matters while providing protection for her financial affairs.

Florida courts prioritize limited guardianships whenever possible, preserving the ward’s autonomy in areas where they can still function independently.

Temporary Guardianships

Temporary guardianships address urgent situations requiring immediate intervention. The Florida court can appoint a temporary guardian when:

• An emergency threatens the ward’s welfare
• The ward faces an imminent risk of physical or financial harm
• A gap exists while permanent guardianship proceedings are underway

These arrangements typically last up to 90 days, though the court may extend this period if necessary. To establish a temporary guardianship, petitioners must demonstrate the ward’s incapacity, the immediate need for protection, and why no less restrictive alternative would suffice.

Permanent Guardianships

Permanent guardianships provide long-term oversight and care when an individual’s incapacity is unlikely to improve. Before establishing a permanent guardianship, Florida requires a thorough examination by qualified professionals, clear evidence of incapacity through medical records and testimony, and consideration of all possible alternatives to guardianship.

Once established, permanent guardianships continue until:

• The ward regains capacity
• The ward passes away
• The court determines that guardianship is no longer necessary or beneficial.

Florida guardians are required to file detailed annual reports with the court, which must document the ward’s condition, the care provided, and the ward’s financial management.

Steps to Establish Guardianship in Florida

Establishing guardianship in Florida follows a structured legal process:

1. Filing the petition: The process begins with filing a petition in the circuit court where the alleged incapacitated person resides.
   
2. Examination process: The court orders an evaluation of the alleged incapacitated person by qualified professionals to assess their capacity.
   
3. Notice to interested parties: All interested parties receive formal notification about the guardianship proceedings, including the alleged incapacitated person and close family members.
   
4. Capacity hearing: During this crucial step, the court reviews professional evaluations and witness testimony to determine whether the person lacks capacity and requires guardianship.
   
5. Guardian appointment: If incapacity is established, the court selects a guardian, considering the preferences of the ward if they were expressed while capable.
   
6. Formal documentation: The court issues official documentation defining the guardian’s powers and responsibilities.
   
7. Ongoing oversight: The guardian must submit regular reports to the court detailing the ward’s condition, care provided, and financial management.
   

The court requires clear and convincing evidence that the person lacks capacity before appointing a guardian. This high standard helps protect individuals from unnecessary restrictions on their independence.

Alternatives to Guardianship

Before pursuing guardianship in Florida, you should consider these less restrictive alternatives:

Durable Power of Attorney: This legal document allows someone to act on another person’s behalf regarding financial and legal matters. Powers of attorney:

• It must be established while the person is still mentally capable
• Can be tailored to grant limited or comprehensive authority
• Allow the principal to maintain legal rights and dignity
• Can prevent the need for court intervention

Healthcare Surrogate Designation: This document appoints a person to make healthcare decisions on behalf of another if they become incapacitated. Benefits include:

• Explicitly focused on medical decision-making
• Can consist of detailed instructions about treatment preferences
• Simpler and less expensive than guardianship proceedings
• Preserves the person’s autonomy in other aspects of life

Trusts: These financial arrangements can manage assets for someone unable to do so themselves:

• Revocable living trusts allow for management during incapacity
• Special needs trusts protect assets while maintaining eligibility for benefits
• Trustee management doesn’t require court oversight or annual reporting
• Can include detailed instructions about asset management and distribution

These alternatives often provide sufficient protection while preserving independence and dignity. I encourage you to explore these options before pursuing guardianship whenever possible.

At Cuturic Law, we approach guardianship matters with sensitivity and practical wisdom. I’ll help you understand your options, including alternatives that might better suit your specific situation. Together, we can develop a plan that provides the necessary protection while respecting your loved one’s dignity and independence.