Guardianship

WHAT IS A GUARDIANSHIP?

737d4b4fd61433eb5d825768dcc62fb7A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person.   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.  In other words, A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person – called a “ward” or for the ward’s assets.  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)

WHO IS INCAPACITATED?

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 of the essential health and safety requirements of the person.  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.

HOW IS A PERSON DETERMINED TO BE INCAPACITATED?

156c982441a5d95e72f75db6b7338166Any adult may file a petition to determine another person’s incapacity with the court setting forth the factual 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 his/her findings to the court. The examination of the incapacitated person normally includes

  1. a physical examination,
  2. a mental health examination and
  3. a functional assessment.

The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee concludes that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition.

If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are lesser restrictive alternatives to guardianship which adequately address the person’s incapacity.

 WHO MAY SERVE AS GUARDIAN?

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.

TYPES OF GUARDIANSHIP

There are three broad categories of guardians: family, professional and public.

  1. Family Guardians – A preference exists in the law for the appointment of a guardian related to a ward by blood or marriage. Sec. 744.312(2), F.S.
  2. A Professional Guardian is any guardian who receives compensation for services to more than two wards, unless the wards are relatives of the guardian. Sec. 744.102(15), F.S.
  3.  A public guardian is a person or organization appointed by the Statewide Public Guardianship Office to serve as guardian for indigent, incapacitated persons who have no family or friends available to serve as guardian. Secs. 744.701 – 744.709, F.S.

Minors

  1. Parents are the natural guardians of their minor children. However, they cannot accept a tort settlement, insurance proceeds or a bequest from an estate for more than $15,000 on behalf of a minor child, without a formal guardianship. Sec. 744.301, F.S.
  2. Guardianship over a minor ends when the ward becomes sui juris (Section 744.521, F.S.), i.e., the ward reaches age 18, marries or is judicially emancipated.

Voluntary Guardians

  1. Sometimes an elder recognizes that help is needed to manage finances. In that case a “voluntary” guardianship may be appropriate. Sec. 744.341(3), F.S.
  2. A voluntary guardianship covers property only (not guardianship of person).
  3. A voluntary guardianship can be terminated by the elder.
  4. A “plenary” guardianship is the most common type of guardianship.
  1. There is no finding of incapacity, except that a doctor’s certificate must be filed stating that the elder understands the nature of guardianship and the delegation of authority.

Emergency Guardians

  1. While a petition for appointment of guardian is pending, the court may appoint an emergency temporary guardian (ETG) if “there appears to be imminent danger that the physical or mental health 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 immediate danger must be apparent to the court, since the ETG may be granted without notice to the alleged incapacitated person or other family members. Sec. 744.3031, F.S.
  2. The authority of the emergency temporary guardian expires sixty (60) days after appointment, or if earlier, when a permanent guardian is appointed; it can be extended upon petition for an additional 60 days, although some judges are willing to extend it indefinitely, until the final guardianship hearing is held.
  3. A Durable Power of Attorney is suspended while incapacity proceedings are pending.

Plenary and Limited Guardians

  1. An Involuntary Guardianship is implemented after judicial hearing if the ward is found to “lack the capacity to manage some or all of his property or to meet at least some of the essential health and safety requirements of such person.” Sec. 744.102(10), F.S.
  2. In a plenary guardianship, all delegable rights have been delegated to the guardian; no rights have been reserved to the Ward. Sec. 744.102(8)(b)(18), F.S.
  1. Although there are statutory procedures for restoring rights to the ward, a 1998 study commissioned by the Claude Pepper Foundation found that rights were restored in only 2.63% of cases.
  2. A limited guardian is appointed to exercise some, but not all, of the tasks needed to care for the Ward. Sec. 744.102(8)(a), F.S.
  3. The order appointing a limited guardian must clearly state the scope of the guardian’s rights and duties.

Standby

Once a guardian is appointed, a “standby” guardian may be appointed by the Court. The standby guardian has no immediate duties or powers, but he or she assumes the duties of a guardian within twenty (20) days after the death or resignation of the prior guardian. Sec. 744.304, F.S.

Preneed

  1. A designation of preneed guardian occurs in two instances: A person designates who shall serve as his or her own guardian in the event the person becomes incapacitated and needs a guardian or,
  2. A parent selects the person(s) who will serve as guardian of the minor children in case the parent dies or becomes incapacitated during the children’s minority.
  3. Both documents eliminate the need for protracted litigation to select a guardian. The court must appoint the designated guardian if that person is otherwise qualified (meets the residency requirements, is not a creditor or felon, etc.) Sec. 744.3046(8), Sec. 744.312(4), F.S.

 Foreign Guardian

  1. There are statutory procedures for managing the Florida property of :
  2. a nonresident ward with a resident guardian (Sec. 744.308, F.S.)
  3. a nonresident guardian and a nonresident ward (Sec. 744.307, F.S.), and
  4. procedures for domesticating a non-Florida adjudication when the ward moves to Florida having been adjudicated in another state (Sec. 744.306, F.S.)

WHAT DOES A GUARDIAN DO?

A guardian who is given authority over property of the ward is required to 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 along with a physician’s report. If the court finds the ward partially incapacitated, it will appoint a limited guardian to perform only those rights which the ward is incapable of exercising.

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.

IS A GUARDIAN ACCOUNTABLE?

Yes. A guardian must be represented by an attorney who will serve as “attorney of record.” Guardians are usually required to furnish a bond (financial institutions and public guardians are not required to file 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 by the court.

IS GUARDIANSHIP PERMANENT?

The guardianship does not have to be permanent. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, a petition can be filed with the court to restore the ward’s rights. In such a case the court will have the ward reexamined and can restore some or all of the ward’s rights.

A guardian may be held accountable and removed as guardian if the guardian fails to carry out his or her duties or otherwise becomes ineligible to act as guardian. A guardian may also resign by providing notice to the court.

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

IS GUARDIANSHIP THE ONLY MEANS OF HELPING AN INCAPACITATED PERSON?

No. Florida law requires the use of the least restrictive alternative to protect persons incapable of caring for themselves and managing their financial affairs whenever possible. If a person creates an advance health care directive, a durable power of attorney or trust while competent, he or she may not require a guardian in the event of incapacity.

WHAT ABOUT GUARDIANS FOR MINORS?

285bf9ecec3c6490c75442ab6bf05268A child’s parents are the child’s natural guardians and in general may act for the child. 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 $15,000, the court must appoint a guardian. Both parents or a surviving parent may make and file with the clerk of the court a written declaration naming a guardian of the child’s person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will.

If you would like more information about initiating a determining of incapacity proceeding or a guardianship proceeding, or if you feel a loved one is being taken advantage of either physically, mentally or financially, WE CAN HELP YOU, please call the Horton Law Group, P.A. at 561-299-0018 to schedule your free consultation.

GUARDIANSHIP PROCEDURE IS STRICT, TEDIOUS AND THERE IS NO ROOM FOR ERROR.

GUARDIANSHIP PROCEDURES

The process of seeking incapacity is strictly controlled. The relevant statutes are found in Chapter 744, Florida Statutes, and there are Guardianship Rules within the Florida Probate Rules.

  1. Pleadings
    1. A petition to determine incapacity must be filed in the county where the alleged incapacitated person resides or is found. It must be signed as a “verified petition” (under penalties of perjury).
    2. The incapacity petition must be filed simultaneously with a Petition for Appointment of a Guardian. Sec. 744.3201(3), F.S.
  1. If the petition for incapacity is dismissed for lack of finding of incapacity, and the court finds that the petition to determine incapacity was filed in bad faith, costs may be taxed against the petitioner. Sec. 744.331(7)(c), F.S.
    1. These are the various rights that a person may be declared unable to exercise: marry; contract; sue and defend lawsuits; determine his or her residency; consent to medical treatment; personally apply for government benefits; manage property or make any gift or disposition of property; decisions about his or her social environment or other social aspects of his or her life; vote, travel, have a driver’s license, seek or retain employment.
  1. Once the petition has been filed and the filing fee paid, the court appoints an attorney to represent the Alleged Incapacitated Person (AIP), and also appoints an “examining committee”. In some counties, the examining committee is automatically selected by the mental health clerks and appointed by the court. In other counties, the attorney for the proposed guardian must select and contact potential members of the examining committee from a local list.
  2. The court must appoint an attorney to represent the AIP. Sec. 744.102, F.S. Such attorney shall represent the expressed wishes of the alleged incapacitated person consistent with the rules regulating The Florida Bar.
  3. Once any level of incapacity is found, the court must appoint a guardian. If the incapacity is partial, then a limited guardian is appointed; if the incapacity is total, then a plenary (full) guardian is appointed.

III. LEGAL ALTERNATIVES TO GUARDIANSHIP

  1. Durable Power of Attorney. If a person has the requisite capacity to execute a Durable Power of Attorney, a guardianship might be avoided. This document, however, only gives another person the right to do certain things outlined in the document. So, an attorney-in-fact under such a document cannot force the maker of the document to do anything the maker does not want to do.
  2. Designation of Health Care Surrogate. If a health care surrogate has been designated in writing, he or she has the authority to make medical decisions (and some mental health treatment decisions if the document so provides).
  3. Jointly Held Assets. If a person’s predicament relates solely to assets and those assets are jointly owned, one joint owner can act (generally) without the consent of the other, depending entirely on what sort of asset it is.
  4. Guardian Advocate for Developmentally Disabled. Under Florida Statute 393.12, a Guardian Advocate can be appointed for a developmentally disabled individual without the necessity of an incapacity determination. The Advocate may make medical and residential decisions.
  5. Guardian Advocate for Mental Health Decisions. Under Florida Statute 394.4598, a Guardian Advocate can be appointed for a patient in a mental health facility who has been found to be incompetent to consent to treatment.
    1. The accounting requirements provide safeguards to ensure the ward’s assets are properly managed.

COURT OVERSIGHT

  1. Accountings.
    1. A guardian of the property is required to file a verified inventory and initial accounting of all the ward’s property within 60 days of appointment as guardian.
    2. Annual Accounting. Each year after appointment, the guardian is required to file an accounting which provides a full and correct account of receipts and disbursements for all the ward’s property that the guardian has responsibility to manage.
    1. The clerk of the court is responsible for auditing guardian accountings. The clerk reviews the accountings to make sure the beginning balances reconcile with ending balances of previous accountings; that disbursements were made pursuant to court order or authorized by statute; and all calculations are correct.
    2. The court must approve or disapprove each accounting and a guardian can be made subject to sanctions for malfeasance. A guardian has a fiduciary responsibility to a ward.
  1. Guardianship Plans
    1. A guardian of the person is required to file within 60 days of appointment an initial guardianship plan based on the recommendations of the examining committee. The plan must include a provision for medical, mental and personal care services for the ward.
    2. Thereafter, the guardian must file an annual guardianship plan that reports on the provision for medical, residential, mental and personal care services for the ward.
  2. Restricted Depository – If the amount of the ward’s cash resources is significant, the court may order the guardian to place a majority of the cash assets in a financial institution that will not allow withdrawals without a court order. In such a case, the guardian can only withdraw cash from the depository upon court approval.
  3. Bonding – Unless exempted by a court, all guardians of the property must post a sufficient bond to cover the amount of cash and liquid assets under the guardian’s control. In addition, professional guardians are required to post a $50,000 bond.
  4. Court Monitors are sometimes known as the “eyes and ears” of the court. Any interested person or the court itself can appoint a court monitor to investigate a guardian, examine the appropriateness of a guardian’s actions; and even interview the ward. The monitor reports his or her findings directly to the court.

If you would like  more information about Florida guardianship law, please call the Horton Law Group, P.A. at 561-299-0018.