As in the other states, Florida has a law which provides for the appointment of a guardian by a state court for individuals who are unable to handle their own affairs. Under Chapter 744 of the Florida statutes, a minor or an adult with mental or physical disabilities can be adjudicated a ward of the court and have a guardian appointed to make personal and/or financial decisions on his or her behalf. If a minor’s parents die or become incapacitated, or if the child receives an inheritance or proceeds of a lawsuit or insurance policy totaling more than $15,000, Florida law requires the court to appoint a guardian for the minor.
The law governing appointment of a guardian for adults requires a finding that an individual is incapacitated. The person’s ability to make decisions must be so impaired that the court grants decision-making power to another person. There can be no less restrictive alternative available or appropriate to take care of the individual’s needs. Examples of less restrictive alternatives include a trust, durable power of attorney, health care surrogate or proxy, or other pre-need directive.
The appointment of a guardian may be voluntary on the part of the ward or involuntary. A mentally competent adult who nonetheless is incapable of handling his finances may himself petition for the appointment of a guardian. A petition for an involuntary guardianship may be filed by any adult. The petition must set forth the facts upon which the petitioner bases his belief that the person is incapacitated. A committee of three is appointed by the court to make the determination of incapacity. The court will consider the express wishes of the incapacitated person in the appointment of the guardian.
In order to effectively address the different levels of need for a guardian, Florida law allows for limited and plenary adult guardianships. If a particular ward lacks the capacity to do some but not all tasks necessary to care for himself and his estate, and if that person does not have pre-planned written instructions for dealing with these issues, then the court will create a limited guardianship. In the case of a ward who is unable to care for himself at all, a plenary guardian can be appointed to exercise all of the legal rights and powers of the adult ward that can be delegated. A guardian over property must inventory, prudently invest, account for, and use the property for the support of the ward. A guardian of a person may, among other things, provide for personal, mental, and medical care and determine the residence of the ward.
When a court removes an individual’s right to care for himself, whether that person is a minor or an incapacitated adult, the court has a duty to protect the ward. Pursuant to that duty, the court appoints the guardian. Guardianships are therefore subject to court oversight. Chapter 744 of the Florida Statutes and Part III, Probate Rules, Florida Rules of Court contain the guidelines that define the duties and obligations of guardians, their attorneys, and the court with respect to the ward.
The Law Offices of James S. Cunha, P.A. can assist you if you or someone you care for is in need of a guardian. Our knowledgeable and compassionate Florida Family Lawyer can provide counsel and representation regarding guardianships or any other family law matter you are facing. We provide legal representation to clients in Palm Beach County including Delray Beach, West Palm Beach, Boca Raton, Lake Worth, Boynton Beach, Palm Beach Gardens, and Jupiter. We also represent family law clients in St. Lucie, Broward, Okeechobee, Hendry, Miami-Dade, and Martin Counties. Please call us toll free at (800) 558-1227, or locally at (561) 429-3924.
