Understanding Guardianships In Florida – Part I

Before we discuss the procedure and purpose for the different types of guardianships in Florida, it is important to understand the terms used.  The following definitions are listed under §744.102.   A "guardian" means a person who has been appointed by the court to act on behalf of a ward's person or property or both.

Generally, there are two types of guardians under chapter 744.  A "Limited guardian" means a guardian who has is court-appointed to exercise the legal rights and powers specifically designated by court order either after the court has found that the ward lacks the capacity to do some of the tasks necessary to care for his or her person or property or after the person has voluntarily petitioned for appointment of a limited guardian. A "plenary guardian" means a person who is court-appointed to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property. A "ward" is informatively defined as a person for whom a guardian has been appointed.  Guardians can be appointed for a minor or for an adult.  This article discusses involuntary guardianships for adults.  

Guardianship usually becomes a necessity when someone starts losing capacity, such as in a situation where an elderly person has dementia.  The term "diminished capacity," is used to describe this type of scenario.  An individual with diminished capacity is more prone to abuse and exploitation. Alleged abuse and exploitation is frequently the reason an interested person seeks the services of an attorney to commence the guardianship process.

The guardianship process is started when an adult person files a Petition to Determine Incapacity with the circuit court in the county where the "alleged incapacitated person" resides.  If there is reason to believe that the that there is imminent danger that the physical or mental health or safety 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, then we counsel the interested person (usually a family member) to also file a Petition to Appoint Emergency Temporary Guardian.  The other petition that is usually filed is a Petition to Appoint a Plenary (or limited depending on the circumstances) Guardian. 

Once the petitions are filed, the petitions are assigned to one of five (currently) different circuit court judges.  If an emergency petition is filed then depending on the judge assigned, the emergency petition could be heard anywhere from a few days after it is filed up to several weeks.  At the hearing on the emergency petition, the petitioner (person filing the petition) has the duty of presenting evidence demonstrating that the court needs to appoint an emergency temporary guardian to prevent immediate harm to the ward or the ward's property.  If the petitioner demonstrates this to the court then an emergency temporary guardian (hence "ETG") is appointed with the powers specifically listed in the order appointing the ETG.  Note that with an emergency hearing, there is no procedural method to determine the "alleged incapacitated person's level of incapacity."

If an emergency petition is not filed, then once the petition to determine incapacity is assigned to a judge, the judge appoints an attorney for the alleged incapacitated person, and the judge appoints an examining committee to evaluate the alleged incapacitated person.  The examining committee consists of three different individuals - usually a psychiatrist, a psychologist and a psychiatric nurse.  These three individuals charge a fee that roughly equals a $1,000.00 total charge depending on several factors.  The examining committee members meet with the alleged incapacitated person and file a report with the court.  The report is circulated to the alleged incapacitated person's family. 

Then, about a month after the petition to determine incapacity is filed, the court holds a hearing based on the reports the members of the examining committee have filed with the court.  If, there is no dispute concerning the level of incapacity, then the court issues an order either declaring the ward partially or totally incapacitated, or if there is no incapacity, dismissing the petition to determine incapacity.

If the alleged incapacitated person is partially or totally incapacitated, then the court must determine if there is a less restrictive alternative to the guardianship process.  If there is no less restrictive alternate, then a plenary or limited guardian is appointed.  However, before a plenary or limited guardian is appointed, the court has to determine whom the guardian should be.

For more information regarding guardianship in Florida, including the process, call us today at (239) 939-7100.  We represent clients throughout Lee County, Charlotte County, Collier County, Henry County and Highlands County.