Termination of Florida Guardianships
If you're ready to hand off your guardianship responsibilities, make sure you don't get swept up in a hurricane of legal troubles. Instead, walk off into the tropical Florida sunset knowing you have properly completed your duties as a guardian. The following article details six scenarios that generally terminate Florida guardianships, as well as the steps necessary to be relieved of guardianship duties and liabilities.
Scenario #1: Restoration of Ward's Capacity
To seek possible restoration of some, or all, of the ward's rights, a "suggestion of capacity" must be filed with the court stating that the ward is capable of exercising the rights that had been previously removed by the court.
Once the suggestion of capacity is filed, the court immediately appoints a physician to examine the ward and provide the court with a written report. Once the court has considered the physician's recommendation, the judge will either deny or restore (fully or partially) the ward's rights.
If the ward's rights are fully restored, the termination process may be fully completed by carrying out "The Final Steps" described below. If only some of the ward's rights are restored, the guardian must file a new guardianship plan with the court addressing the rights retained by the guardian.
Scenario #2: Change of Ward's Legal Residence or Domicile (Moving Out-of-State)
A guardian must get authorization from the court before a ward's domicile (legal residence) may be moved to a different county or state. If the court authorizes the guardian to change the county in which the ward is domiciled, the guardian should transfer the ward's file to the new county's court.
If the guardian has obtained authorization to change the ward's domicile to a different state, he or she may be relieved from the duties as guardian in Florida. But first, the guardian must file proof in the Florida court that the court in the ward's new state has appointed a new, qualified guardian.
Next, the guardian should carry out "The Final Steps" outlined below. Once the guardian has filed the final accounting (outlined below), he or she should publish a notice in a generally well-known county newspaper once a week for two consecutive weeks.
Scenario #3: Resignation or Removal of Guardian
If a guardian wishes to resign, he or she may file a resignation and petition for discharge. The court will then direct the guardian to carry out "The Final Steps" described below.
In some circumstances, a guardian can be removed from their position by a court. If a guardian to the ward breaches their fiduciary duty to the ward, it may result in the guardian's removal. Essentially, if a court determines that a guardian's removal is in the ward's best interests, the court may remove the guardian. The guardian must then file a final accounting with the court and return all property and records to the next guardian who is appointed. Failing to do so could result in being held in contempt of court.
Scenario #4: Ward's Death
Even in the event that a ward passes away, a guardianship remains until the court enters an order of discharge. In the meantime, the guardian must continue to protect, preserve, insure, and invest guardianship assets until the ward's estate is fully distributed. The guardian should then carry out "The Final Steps" described below. In addition to these final duties, the guardian may also be called upon to pay for funeral expenses.
Scenario #5: If the Ward's Assets Have Been Used Up
If the ward's assets have been used up (or, in legal terms, "exhausted"), the guardian must continue to file annual financial reports, auditing fees, and a bond. To be relieved of these duties (and from having to pay the annual renewal premiums), a guardian may seek to be discharged of the right to manage property by filing a final accounting showing that all of the ward's assets have been lawfully exhausted. Once the court has reviewed the accounting, it may enter an order amending the guardianship, so long as doing so would not go against the ward's best interests.
Scenario #6: Inability to Locate the Ward
If the guardian is unable to locate the ward after a diligent search, the court may order the guardian to sell the ward's property and deposit the funds with the clerk of the court. The guardian should then file a final report to receive a discharge from the court.
The Final Steps
Remember that a guardianship is not terminated until the court enters an order of discharge. Regardless of the circumstances leading to the termination of the guardianship, the following three final steps are generally required before a guardian's duties and liabilities are fully discharged:
- A final accounting of financial activities;
- The filing of the final attorney and guardian fee petitions; and
- The complete distribution of guardianship property and funds.
It is important to know that guardians must keep their records at least 3 years after being discharged of guardianship duties.
When it comes to final fee petitions, the guardian is authorized to retain a sufficient amount of the funds in his or her possession in order to pay the final costs of administration. However, the guardian is not authorized to actually disburse these funds until approved by court order.
Finally, the guardian must distribute assets to the appropriate parties. Guardians should collect receipts signed by those receiving assets, because the court requires proof before the guardian may be discharged.
If you have general questions regarding your guardianship duties, check out FindLaw's section on guardianship. This article is not exhaustive and is meant to provide general information only, so it may not cover all the paperwork and procedures relevant to your case. To ensure the specifics of your case are addressed, you may want to consider consulting with an attorney.