Guardianship is a legal process that is governed by Florida law. The Florida law that governs guardianship proceedings and guardian activities is designed to protect the interests of incapacitated people.
A guardian is a person or entity appointed by a court of law and authorized to make important decisions on behalf of an incapacitated person. A Florida guardian is accountable to the court and must report annually on the financial and physical status of the incapacitated person.
A Ward is an individual who has been deemed incapacitated by a court of law. A Ward is a person who lacks the ability to make sound decisions about his or her health, safety, and/or financial matters due to mental illness, developmental or physical disability, substance abuse or advanced age. The incapacity can also render the person vulnerable and susceptible to negative influences such as fraud or exploitation.
The legal process for guardianship begins when a concerned individual or entity (“Petitioner”) recognizes that a person may lack capacity and may need a guardian. Through an attorney, a petition for guardianship is filed with the court. In Florida, an attorney must represent the concerned person or entity throughout the guardianship proceedings. In the event of an emergency, an Emergency Temporary Guardian may be appointed. The court will appoint an independent attorney for the alleged incapacitated person, and a three-member examining committee to evaluate the person. A hearing will take place before a judge to determine whether or not a guardianship is needed.
Guardianship is not necessary for every person with a disability, unless the disability renders the person incapacitated in accordance with Florida guardianship law.
Yes, there are alternatives to guardianship. Florida law provides for the appointment of a “guardian advocate” for developmentally disabled persons in certain cases. Florida law also recognizes “advanced directives” as an alternative to guardianship. An advanced directive is a pre-arranged legal document that grants authority to another to make decisions on behalf of a person in the event of his or her incapacity. If prior to incapacity, an individual prepared “advanced directives” that sufficiently address a person’s health care, legal, or financial matters, then a guardianship may not be necessary.
Public guardianship is governed by the Florida Department of Elderly Affairs. A public guardian may serve as a guardian of a person adjudicated incapacitated if there is no family member or friend, other person, bank or corporation willing and qualified to serve as guardian.
Incapacitated persons of limited financial resources with no family or friends willing, qualified and available to serve may be entitled to the services of the public guardian.