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Guardianship

Unfortunately, as many of us get older, there comes a time when we can no longer mange our affairs. In other instances, children's parents die or become incapable of raising them. For theses types of situations, the law has created guardianships. The term "guardianship" simply means a legal proceeding in which a person designated by the Court to be a "guardian" exercises the legal rights of a "ward". A ward is someone who has been determined by the Court to be partially or totally incapacitated. With respect to most minors (those under age of 18 in Florida), they are, by definition, legally incapable of acting for themselves. A guardianship proceeding is initiated by filing a number of different documents including a Petition to Determine Incapacity and/or a Petition for Guardianship.

TYPES OF GUARDIANS

There are three broad categories of guardians: family, professional and public.

  1. Family Guardians - A preference exists under Florida law for the appointment of a guardian related to a ward by blood or marriage. See Fla. Stat. 744.312(2).
  2. A Professional Guardian is a guardian who receives compensation for services to more than two wards, unless the wards are relatives of the guardian. See Fla. Stat 744.102(15).
  3. A Public Guardian is a person or organization appointed by the Statewide Public Guardianship Office to serve as guardian for indigent, incapacitated persons who have no family or friends available to serve as guardian. See Fla. Stat. 744.701-744.709.
  4. Natural Guardians- The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise. See Fla. Stat. 744.301. While parents are the natural guardians of their children, they cannot accept a tort settlement, insurance proceeds or a bequest from an estate for more than $15,000 on behalf of a minor child, without a formal guardianship. See Fla. Stat. 744.301.Guardianship over a minor concludes when the ward becomes "sui juris" (See Fla. Stat. 744.521), the ward reaches age 18, marries or is judicially emancipated.
  5. Voluntary Guardians- Sometimes an elder recognizes that help is needed to manage finances. In those types of situations, a "voluntary" guardianship may be appropriate. See Fla. Stat. 744.341. A voluntary guardianship covers property only (not guardianship of person). There is no finding of incapacity, except that a doctor's certificate must be filed stating that the ward understands the nature of guardianship and the delegation of authority.A voluntary guardianship can be terminated by the elder.
  6. Emergency Guardians - A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be "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. The subject of the proceeding or any adult interested in the welfare of that person may apply to the court in which the proceeding is pending for the emergency appointment of a temporary guardian. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order. The authority of the emergency temporary guardian expires ninety (90) days after appointment, or if earlier, when a permanent guardian is appointed; it can be extended upon petition for an additional 90 days, although some judges are willing to extend it indefinitely, until the final guardianship hearing is held.

TYPES OF GUARDIANSHIPS-

Plenary and Limited Guardians

An Involuntary Guardianship is put in place after a hearing if the ward is found to, at the minimum, "lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person". See Fla. Stat. 744.102(12).

Generally speaking, there are two types of guardianships, "plenary" and "limited".

  1. "Plenary guardian" means a person who has been appointed by the court 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. See Fla. Stat. 744.102(9).
  2. "Limited guardian" means a guardian who has been appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the ward lacks the capacity to do some, but not all, 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.
  3. "Preneed Guardian"-
    1. For Minors- Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent's minor child by making a written declaration that names such guardian to serve if the minor's last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor. See Fla. Stat. 744.3046.
    2. Adult Preneed Guardian- A competent adult may also name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant's incapacity. The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time. See Fla. Stat. 744.3045.

HOW IS A PERSON DETERMINED TO BE INCAPACITATED?

Any adult may file with the court a petition to determine another person's incapacity setting forth the facts upon which they base their belief that the person is incapacitated. The court then appoints a committee of two professionals, usually physicians, and a lay person to examine the person and report their findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing.

WHO MAY SERVE AS GUARDIAN?
Pursuant to Fla. Stat. 744.309, the following persons may be appointed as guardians:

  1. RESIDENTS- Residents of this state who are over the age of 18 years and who are sui juris.
  2. NONRESIDENTS.--A nonresident of the state may serve as guardian of a resident ward if he or she is:
    1. Related by lineal consanguinity (blood) to the ward;
    2. A legally adopted child or adoptive parent of the ward;
    3. A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or
    4. The spouse of a person otherwise qualified under this section.
  3. TRUST COMPANY, STATE BANK OR SAVINGS ASSOCIATION, OR NATIONAL BANK OR FEDERAL SAVINGS AND LOAN ASSOCIATION.--A trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state may act as guardian of the property of the ward.
  4. NONPROFIT CORPORATE GUARDIAN.--A nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state may be appointed guardian for a ward. If the nonprofit corporate guardian charges fees against the assets or property of the ward for its services, the corporation must employ at least one professional guardian.
  5. HEALTH CARE PROVIDER.--A provider of health care services to the ward, whether direct or indirect, may not be appointed the guardian of the ward, unless the court specifically finds that there is no conflict of interest with the ward's best interests.

PERSONS WHO CANNOT SERVE AS GUARDIANS

  1. CONVICTED FELONS- No person who has been convicted of a felony can serve as a guardian.
  2. INCAPACITATED PERSONS- Persons whom themselves are from any incapacity or illness, incapable of discharging the duties of a guardian, or who are otherwise unsuitable to perform the duties of a guardian, shall not be appointed to act as guardian.
  3. PERSONS WHO HAVE COMMITTED ACTS OF ABUSE IN THE PAST-No person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in s. 39.01 or s. 984.03(1), (2), and (37), or who has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.03 (there are several offenses listed in 435.03) or under any similar statute of another jurisdiction, shall be appointed to act as a guardian.
  4. PERSONS WHO PROVIDE SERVICES TO THE WARD- Except as otherwise provided, a person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may not be appointed guardian and retain that previous professional or business relationship. A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward's best interest. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.


WHAT DOES A GUARDIAN DO?

A guardian essentially does those things that the ward cannot do for himself. A guardian typically takes control of the wards property and makes arrangements for the ward's daily needs. An annual guardianship report is required under which the guardian advises the court of the overall financial condition of the ward's property.

If you, or someone you know, needs a guardianship action prosecuted or defended, please contact The Gufford Law Firm, P.A. We will sit down with you and determine the best approach to the often difficult emotional and legal issues raised.