Guardianship

Ledbetter Law Group led by Steven W. Ledbetter, P.L., Attorney at Law, represents family members, alleged incapacitated parties, and other interested parties in guardianship actions, both contested and voluntary. Further, representation is provided to help either avoid or mediate the need for contested litigation.

 

Florida Guardianship FAQ

(Chapter 744, F. S.)

What Is A Guardian?

In legal terms, a guardian is appointed by the court to care for another person, called a ward.  This surrogate decision-maker is responsible for making decisions for the ward.

At times, there are two areas of Guardianship, Guardianship of the Person and Guardianship of the Estate.  A legal guardian in Florida is assigned to make either personal and/or financial decisions for the ward.

Wards in plenary guardianships are, by definition, unable to care for themselves.

Who May Need Legal Guardianship?

  • Minors
  • Developmentally disabled adults
  • Incapacitated Seniors

Voluntary And Involuntary Guardianship –

Florida law allows for a voluntary guardianship to be established for an adult, while being mentally competent, is not capable of managing their estate and who voluntarily petitions for the appointment of a guardian.

Involuntary guardianship occurs when an individual files a petition in the Probate court, alleging the person lacks the mental and/or physical capacity to manage his or her person and/or property in some or all areas. This adult person is referred to as the alleged incapacitated person (AIP).

How Is A Person Determined To Be Incapacitated?

All depending on jurisdiction, a person may be determined by the court to lack the ability to meet their own health and safety needs and/or manage property. The process begins when the concerned party files two separate petitions with a Florida Court, (Petition for Appointment of Guardianship and Petition to Determine Incapacity).

The Court appoints a committee of three professionals to examine the person and report findings back to the Court.  These professionals can include doctors, nurses, psychologists, and/or social workers.  The Court will then either dismiss the petition or the Court will schedule a hearing, usually within 30 days after the petitions were filed at which point a guardian is usually appointed. 

 

Possible Roles Of A Legal Guardian:

  • Decision making in reference to medical treatment
  • Determining and monitoring residence
  • Handling confidential information
  • Making End-of-Life Decisions
  • Maximizing the ward’s independence
  • Handling of Assets
    • Paying Bills
    • Investing Assets and Protecting from Loss

Who Can Serve As A Guardian in Florida?

  1. Non-Professional Guardians– usually family or friends who wish to act on behalf of the ward.  They are able to serve up to two people.
  2. Professional Guardian – can serve three or more persons and are typically compensated for their services.
  3. Public Guardians – Meet the same requirements as a Professional but can only serve persons with limited financial means and who have no one else to serve as their guardian.

Any adult resident of Florida can serve as a guardian, as can a close relative of the ward who does not live in the state of Florida. There are exceptions such as those who have been convicted of a felony, persons who are too ill to perform the necessary responsibilities, or those who are considered unsuitable to perform the duties of a guardian. Background checks including credit checks may be required.

What Are the Fiduciary Duties Of A Guardian In Florida?

In Florida, a legal guardian is to act in good faith and have the ward’s best interest in mind.  They are to keep clear and accurate records, and to act within the scope of authority granted to the guardian.  The guardian should consider the expressed desires of the ward.

There are Florida Statutes, state laws, in place to protect the ward and ensure the guardian will not abuse, neglect, or exploit a ward while under the guardian’s care.  This includes fraud, which can include making an appointment as a guardian, and abusing power regarding funds by either wasting, embezzling, or intentionally mismanaging the ward’s assets.

Financial Scenarios Regarding Being A Guardian-

  1. A legal guardian may be required to take out a bond, which our office obtains from an insurance company. 
  2. Guardians are not liable for the Ward’s Debts.
  3. Guardians can be reimbursed for costs associated with the matter or paid a fee.  All fees are taxable income.  Reimbursements of costs are not taxable.