Guardianship

Announcement

Effective July 1, 2017 Florida Legislation has enacted new filing dates for Guardianship Plans. Please Click Here to view the changes. 

Definition
A guardianship is a legal proceeding in the courts in which a guardian is appointed by the court to exercise the legal rights of an incapacitated person. A guardian of the person makes decisions and takes action regarding the well being of the incapacitated person. The guardian of the property is responsible for managing the property/assets of the incapacitated person.

Download a list of registered professional guardians from the Florida Department of Elder Affairs, Statewide Public Guardianship Office.

Conservatorship
A Petition for Conservatorship may be filed with the court, if a person is missing and presumed dead, in order that the court appoint a conservator to safeguard the property of the absent person.

Guardianship Examining Committee - Florida Statute 744.331 (3)(a)
Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members....The clerk of the court shall send notice of the appointment to each person appointed no later than 3 days after the court's appointment. The Fifth Circuit maintains a registry of experts for Guardianship Examining Committee services. The link is http://www.circuit5.org/.

Please refer to Administrative Order A-2008-41-B which addresses the rates of compensation for court-appointed attorneys, experts, expenses and other court related function as established by the General Appropriations Act and approved by the Justice Administrative Commission.

Declaration of Pre-Need Guardianship - Florida Statute 744.3045
This document names the person that the filer wants to become his or her guardian in the event they become incapacitated or, in the event the filer dies, the person the filer wants to become guardian of his or her children. There is no filing fee for the document.

Emergency Temporary Guardianship - Florida Statute 744.3031
The 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 authority of an emergency temporary guardian expires 60 days after the appointment, but may be extended for an additional 30 days upon a showing that the emergency conditions still exist.

Exploitation of Vulnerable Adult Injunction
The cause of action may be sought in an adversary proceeding by a vulnerable adult in imminent danger of being exploited, the guardian of a vulnerable adult in imminent danger of being exploited,
a person or organization acting on behalf of the vulnerable adult with the consent of the vulnerable adult or his or her guardian, or a person who simultaneously files a petition for determination of incapacity and appointment of an emergency temporary guardian ith respect to the vulnerable adult.

Guardianship Incapacity - Florida Statute 744.3201
This is a procedure that provides for a guardian to be appointed for a person who has been determined by the court to be incapacitated.

Incapacity - Fla. St. 744.3201
A Petition to Determine Incapacity may be filed when it is necessary that the Court determine whether an adult person lacks the capacity to manage at least some of his/her property or to meet at least some of the essential health and safety requirements to care for his/her person. A Petition to Determine Incapacity may be executed by an adult person. Once the petition is filed, an examining committee is appointed and an attorney is appointed to represent the alleged Incapacitated Person. The Examining Committee must be composed of a Psychiatrist, a Psychologist or Gerontologist and a Layperson. The Examining Committee files a written report. The hearing is usually set within 14 days of the filing of the petition.

Guardianship of a Minor - Florida Statute 744.3021
Guardianship of minor may be petitioned by a parent, brother, sister, next of kin, or other person interested in the welfare of a minor and a guardian may be appointed by the court without the necessity of adjudication pursuant to 744.331-Procedures to determine incapacity.

Claims of Minors Florida Statute 744.3025
The court may appoint a guardian ad litem to represent the minors interest before approving a settlement of the minor’s portion of a claim for personal injury, property damage, wrongful death or other cause of action where the gross settlement of the claim exceeds $15,000. Petition for Guardianship of Minor of Property may also be filed when minor settlements exceed $15,000.

Guardianship of Minor – Florida Statute 744.342
Upon petition the court may appoint a guardian for a minor without appointing an examining committee or conducting an adjudicatory hearing pursuant to 744.331.

Rule 5.030 – Every guardian shall be represented by an attorney admitted to practice in Florida. A guardian advocate is not required to be represented by an attorney unless otherwise required by law or the court.

Veteran Affairs Guardianship
This procedure is limited to veterans and other persons who are entitled to receive benefits from the U.S. Department of Veterans Affairs.

Voluntary Guardianship - Florida Statute 744.341
When voluntarily petitioned by a person who, though mentally competent, is incapable of managing their assets by reason of age or physical infirmity, the court may appoint a guardian of the property.