Florida Guardianship Procedures
Sometimes we are faced with the difficult situation of having a family member or loved one become unable to make day-to-day decisions for themselves. When this happens, it may become necessary to have a guardian make decisions for that person. The process of determining a guardian can be complicated. This is a brief overview of Florida guardianship procedures, in order to give you a better idea of what is involved in a Florida guardianship proceeding.
What Does Guardianship Mean?
Under Florida law, guardianship refers to the management of the affairs of someone who is unable to manage his or her own affairs. Generally, a court orders guardianship on behalf of someone who is called a “ward” of the court. A guardian then assumes the rights of the ward to make decisions about many aspects of the ward’s daily life. A guardian is obligated by ethical and statutory rules to make decisions in the ward’s best interest.
Who Can Be a Guardian?
A person is qualified to serve as a guardian in Florida if he or she:
- Is over the age of 18 years of age; and
- Is a Florida resident; or
Is a non resident who is:
- Related by direct descent to the ward;
- A legally adopted child or adoptive parent of the ward;
- A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone elated by lineal consanguinity to any such person; or
- The spouse of a person otherwise qualified above; and
- Has never been convicted of a felony.
How Can I File to Become a Guardian in Florida?
A person seeking guardianship can file three documents: a Petition to Determine Incapacity, which establishes that the ward needs a guardian; a Petition for Appointment of Guardian, which asks the court to appoint a guardian; and an Application for Appointment as Guardian, which asks the court to appoint you as the guardian.
How Does the Court Determine Guardianship?
After you file a Petition to Determine Incapacity, the court can appoint three individuals to serve as members of an examining committee. One member must be a psychiatrist or other physician. The other members must be medical professionals who can advise the court in the form of an expert medical opinion. One of three members of the committee should have expertise in the type of incapacity the ward is suffering from, but cannot be the ward’s attending or family physician. Each of the committee members then meets independently with the ward to evaluate his or her abilities. Each member will make a written report that they file with the court.
The court may appoint an attorney to represent the allegedly incapacitated person. Or the person may substitute their own attorney to represent them throughout the proceeding, if they so choose.
What Happens After the Court Appoints a Guardian?
If the court appoints a family member to serve as guardian, that family member will be required to attend an eight-hour educational course for guardians. He or she must also submit to criminal and credit background checks, and he or she must file proof of completion with the court. Non-Florida residents may complete the educational course by listening to audiotapes.
The approximate cost to open a guardianship will vary depending on the specific circumstances of each case, including court costs, the examining committee fees, the court appointed attorney's fees, and your attorney's fees, should you choose to hire one. The cost can range from approximately $5,000.00 to $7,500.00 or more. After guardianship is determined, the fees and costs can range from $300.00 to over $2,500.00 per year.
Guardianship can be a complicated legal process, and you may find it helpful to consult with an experienced family law attorney in Florida. You can also find more information in FindLaw’s guardianship law section.