What does Adult Guardianship mean?
What is Adult Guardianship in Florida?
It’s the job of the legal guardian to make every day decisions for an adult who lacks competency, but it is also their responsibility to be mindful of larger life experiences, like selling real estate, changing bank accounts, and a host of other important matters that impact an adult’s business or financial interests.
Florida does require a legal process when declaring an adult incompetent and appointing a guardian. The Adult Guardianship Statute outlines these procedural requirements. To help illustrate them, I have outlined the first three steps from the statute:
- Decide how to proceed: Generally, a little bit of planning ahead can go a long way when it comes to proceeding with guardianship over an adult who has lost their competency. Several options are available to the person seeking the guardianship. Among them, is the possibility of having someone else appointed in your place to be the guardian, or having the person who is incapacitated appoint their own guardian. These options are briefly addressed below and will be discussed in more detail in future posts.
- Determine whether the adult actually needs a guardian: When someone asks about legal guardianship , sometimes they think it’s a quick process that requires a simple court order. When it is not properly explored, guardianship can become a long and grueling legal battle that often accomplishes very little. Before embarking on the lengthy process of getting a guardianship, be absolutely sure that there really is no other option. You should seek an alternative to guardianship unless it is truly necessary.
- File Legal Forms: If no other option exists, filing legal forms may be appropriate. You can do this with or without a lawyer. When you hire a lawyer, they’ll know what to file and why. If you decide to file the forms on your own, you can easily find all the forms you need to get started at a Florida courthouse. When you’re ready to proceed, the next step is either to ask the court to name you (or whomever you’re filing to have as the guardian) as the guardian, or you can ask the court for a "professional evaluator" to make the decision for you. If the professional evaluator or the judge approves, they’ll appoint a guardian that suits the best interests of the adult.
Requirements to become a Legal Guardian
Eligibility for Legal Guardianship in Florida
Under the Florida Statutes, a guardian may be appointed when a person is "totally without capacity" or "partially incapacitated." The presumption in Florida, under F.S. 744.3201, is that all persons are competent until determined otherwise. There are various types of guardianships depending on the incapacity of the person, such as a plenary guardian for someone totally incapacitated and a limited guardian for one who is only partially incapacitated. F.S. 744.3215 sets forth who can serve as a personal representative for an incompetent person to "preserve and maintain the property and care for the person restrictive up to and including a total plenary guardianship where necessary."
The following grounds exists for a finding of incapacity under Florida law:
(1)(a) A person alleged to be incapacitated may be any person 18 years of age or older who has been found incapacitated by the court.
(b) In determining incapacity, consideration must be given to the following areas of function:
- Cognition;
- Mobility;
- Orientation;
- Emotion;
- Communication;
- Self-care;
- Conduct; and
- Learning.
- (2) Incapacity may be total, partial as to person, property, or both, or the appointment of a guardian advocate for a developmentally disabled person. A petition for appointment of a guardian advocate may be used in lieu of a petition for appointment of a guardian for a developmentally disabled person.
A person cannot be declared incapacitated based solely on one or more of the following grounds:
- (1) Aging or advanced age;
- (2) Infancy;
- (3) Minority;
- (4) Infirmity of mind or body resulting from a near or total loss of eyesight or hearing or from injury to or disease affecting the body or mind;
- (5) Intoxication;
- (6) Substance abuse;
- (7) Specific learning disabilities;
- (8) Being a patient as defined by the Florida Mental Health Act of 1971 in a hospital as defined in that act or an outpatient treatment provider for a mental health condition, or a facility, as defined in s. 916.106, of the Department of Children and Family Services for a mental illness or developmental disability;
- (9) Being a patient, resident, or client of the Department of Children and Families, the Department of Corrections, or the Department of Juvenile Justice; or
- (10) Having an advanced, serious, progressive deficiency of understanding related to a memory deficit of a value, difficulty comprehending written communications, difficulty recognizing familiar people and places, impairment of journal functioning and judgment, or other like causing significant problems in accepting responsibility for care and management of his or her property and affairs.
The Guardianship Process
The process of establishing guardianship over an adult in Florida begins with the filing of a Petition for Appointment of Guardianship pursuant to Florida Statute 744. This statute governs the appointment of guardians for both minors and adults. In practice, however, the appointment of a guardian for a minor is generally sought under Florida Statute 744.301, which provides a simplified, streamlined process for such cases. Where a guardian is being sought for an adult who meets the statutory criteria, the court procedure for the appointment is generally governed by Florida Statute 744.3201, et. seq.
The Petition must be filed in the circuit court of the county in which the alleged incapacitated person resides, or if absent from the state, in the county in which property of the alleged incapacitated person may be found. A Notice of Hearing must be given to persons stated in Florida Statute 744.3203(2)(b) who would be entitled to share in estate distribution upon the death of the alleged incapacitated person, to the spouse of the alleged incapacitated person, and to the adult children of the alleged incapacitated person. The alleged incapacitated person is entitled to notice of the hearing at a time that allows them to appear. The Petitioner must obtain a Guardian Advocate Certification from a person who has examined the alleged incapacitated person and the court may appoint a member of the professional guardian’s staff to examine the alleged incapacitated person in lieu of the examination by the Guardian Advocate. Not less than three business days prior to the hearing, the alleged incapacitated person is entitled to a copy of the reports made by the examining committee as well as the Guardian Advocate Certification. A Court Visitor will also interview the alleged incapacitated person and may be required to provide a report to the court within 15 days after these documents have been given to the court. The Notice of Hearing and the Court Examiner Report must be served on all persons entitled to notice of the hearing not less than five days before the hearing. If the hearing is continued, a new Notice of Hearing must be served at least five days before such hearing.
A Guardian Ad Litem ("GAL") will normally be appointed by the court to meet with the alleged incapacitated person prior to the hearing. The GAL will be ordered to submit a report to the court within 10 days of the hearing date setting forth any objections or concerns regarding the requested appointment of a Guardian, including findings of fact and recommendations. At least 48 hours prior to the hearing, the court may appoint an attorney to represent the alleged incapacitated person at the hearing. Upon an oral or written statement by the alleged incapacitated person, the GAL or exhibit C to the Petition, the court shall take such action as is appropriate to protect the alleged incapacitated person’s rights. This may require that an adversary hearing be held in which the court shall make those findings of fact and rulings required by Florida Statute 744.3215(1).
Responsibilities and Rights of the Guardian
The appointment of a guardian not only protects the incapacitated person, but also imposes legal obligations and responsibilities on the guardian. There are legal rights that are granted to a guardian which dictate the extent of the authority granted. For example, a guardian may have the authority to manage assets; make medical decisions on an incapacitated person’s behalf; arrange for personal care, such as assistance with grooming or bathing; arrange for living accommodations; and restrict or deny contact with others. However, there are obligations and limitations imposed either by law or by the court, such as the filing of an inventory; annual accounting; and seeking court approval for certain actions, such as the sale of real property.
A guardian must act only in the "best interest" of the incapacitated person and with the "degree of care, skill, prudence and diligence" that a reasonably careful person would exercise in managing the affairs of another person. The foregoing is the same as a fiduciary duty to a ward, who is the individual subject to guardianship. The statutes governing guardianship further provide that guardians shall:
• Report to the court regarding the condition of the ward;
• Consistent with the court order and the rights of the ward, control and preserve the property of the ward and apply it as ordered by the court solely for the benefit of the ward;
• Preserve and account for any property of the ward delivered to the guardian;
• Manage the estate of the ward by exercising the care and diligence that a careful and prudent person would exercise in dealing with the property of another person, keeping separate from the guardian’s own property all money and other property collected or received by the guardian on behalf of the ward and not mixing with the guardian’s money or property without court approval, and keeping all the property and money of the ward separate and apart from that of the guardian; and
• Provide for the care, maintenance and education of the minor children of the ward, if any.
In sum, a guardian has a fiduciary duty, and a legal right, to protect and care for their ward’s property. While this includes making decisions in the best interest of the ward, these decisions should not be made in a vacuum. The guardian has a duty to consult with the ward, reasonably when possible, regarding his/her decisions. The guardian’s duty to provide care and maintenance is also limited to the needs of the ward as set forth by the court. Guardians do not have free reign to unilaterally decide what services and benefits the ward should receive.
The merits of legal guardianship are two-fold. It both protects the incapacitated person and his or her assets, while also creating a safeguards against potential mismanagement by a guardian. A ward is vulnerable to both judicial and non-judicial oversight and accountability. When a ward suffers a loss due to a guardian’s actions, the ward has recourse through the legal system, including the ability to hold a guardian financially accountable.
Different Types of Guardianships
There are two types of guardianships available for adults in Florida. The first is a plenary guardianship, which grants full authority over the person and property of the ward, except in circumstances where a limited guardianship must be imposed; the status quo may only be tailored by order of court with a sufficient screening of less intrusive alternatives. A plenary guardianship is appropriate only when it is clearly established that the ward is totally incapacitated and further, that a more limited form of guardianship is not sufficient.
The second type is a limited guardianship. This type avoids the default of full incapacitation. The limited guardian is granted only the power and duties needed by the ward . Each right actually retained by the ward must be expressly listed by the court. The specific limitations do not need to be tied to the basis of the incapacity, nor to a specifically enumerated list of duties. Standard powers and duties are not prescribed by statute, but often include oversight of healthcare, finances, legal matters, and living arrangements.
Limited guardianships were instituted by the 1993 Guardianship Reform Act as an alternative to plenary guardianship. Limited guardianships afford the incapacitated individual the opportunity to elect which rights to retain via an advance directive or a designating document through surrogate decision-making guidance.
Problems and Pitfalls
The role of a guardian, while noble, can also be fraught with complex challenges and ethical considerations. One primary concern is the potential for conflict between the guardian and the ward’s family. Often, families have differing opinions about the best course of action, leading to dissent and disputes. Having a clear action plan at the outset and an open line of communication is vital. An experienced attorney can help facilitate these discussions and provide an effective resolution to any family disputes. Another consideration is financial management. A guardian who is responsible for the financial affairs of an adult ward must handle funds judiciously. This includes keeping accurate records of all financial transactions, ensuring the ward’s finances remain separate from the guardian’s, and providing regular accounting updates to the court or relevant parties. Failure to meet these obligations can result in legal action against the guardian, including removal from this position. The emotional and financial toll can be overwhelming for all parties involved. Given these potential challenges, it’s essential to approach guardianship with due consideration and professional guidance.
Termination of a Guardianship
There are several circumstances in which a guardianship can come to an end. In this section we discuss the procedures available to terminate or modify a guardianship when the circumstances no longer warrant the use of a guardian. Termination may be sought upon the death of the ward or if the Alachua County court determines that the ward has regained their capacity and can manage their property and business.
In Florida, the person who wants to end the guardianship must file a Petition for Discharge. The following persons can file the Petition: the guardian, the incapacity person, or any other person interested in the welfare of the ward. Florida Statute 744.464(1) details specifically the individuals who may file the petition. A hearing is scheduled upon filing the petition.
Any interested person, including the ward, may file a petition alleging that the ward has experienced a significant improvement in his or her capacity to the extent that the ward is no longer in need of a guardian, either in fact or as a matter of law. Florida Statute 744.464(3) . This type of petition must be supported by a physician’s report showing evidence of the ward’s significant improvement to be filed within 60 days of the petition. A hearing will be held on the issue and the incapacity adjudication may be modified or rescinded if the evidence shows that such is in the best interest of the ward. The Florida Statutes set forth the following special requirements that must be met to support the petition and bring evidence of the ward’s significant improvement: the person recommended must have been involved in the ward’s treatment for at least three months, the report must be filed as an exhibit at the hearing, no more than 60 days before the hearing with the exception of an emergency, the report must evaluate the ward’s present level of capacity, and the report must state whether and to what extent the ward meets each applicable standard for determining incapacity. The court will only make a determination of whether or not the ward’s incapacity should be modified or reversed based on the evidence presented. It is always the burden of the petitioner to produce evidence that the ward does not need a guardian.
