FAQs • Citrus County Clerk of Courts, FL • CivicEngage

Is a guardianship the only way to help an incapacitated person?: Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs, whenever possible. If a person creates an advance health care directive and a durable power of attorney or revocable living trust while competent, he or she may not require a guardian in the event of incapacity.

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Guardianship

1. What is a guardianship?: A guardianship is a legal proceeding in the circuit court in which a guardian exercises the legal rights of a minor or incapacitated person. Guardianship's are established for various reasons such as an adult who lacks the ability to care for himself/herself; a minor who has received an inheritance or personal injury settlement; or a minor who is living with relatives who need to make decisions about the minor's schooling and health care.

2. What is a guardian?: A guardian is an individual or institution (like a bank) appointed by the court to be a guardian of the person only, property only, or both person and property. Guardians can have their powers limited by the court order, or can have plenary power to exercise all rights of the minor or incapacitated person.

Any adult resident of Florida can serve as a guardian, as can a close relative of the person who does not live in Florida. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed.

3. What does a guardian do?: A guardian of the property must inventory the property, invest it prudently, use it for the person's support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions. A guardian of the person may exercise those rights that have been removed from the person and delegated to the guardian, such as providing medical, mental, and personal care services and determining the place and kind of residential setting best suited for the person. The guardian must present to the court annually a detailed plan for the person's care.

4. What is required of a guardian?: 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. Guardians are usually required to furnish a bond and may be required to complete a court-approved training program. The Clerk of Court reviews all annual reports of guardians of the person and property, and presents them to the court for approval. The court may remove a guardian who does not properly carry out his or her responsibilities.

5. What is an incapacitated person?: An incapacitated person is one who has been judicially determined to lack the capacity necessary to manage at least some of his or her property or who cannot provide for his or her own health and safety.

6. Is a guardianship the only way to help an incapacitated person?: Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs, whenever possible. If a person creates an advance health care directive and a durable power of attorney or revocable living trust while competent, he or she may not require a guardian in the event of incapacity.

7. How will an incapacitated person know that a guardianship proceeding has been initiated?: Generally, the attorney representing the person seeking to be a guardian initiates a guardianship case by filing of a petition and an application for appointment of guardian with the Probate Division of the Clerk of the Circuit Court. If the court finds a person to be incapacitated, the court will appoint an attorney to represent that person.

8. What about guardians of minors?: A child's parents are the child's natural guardians, and in general may act for the child. In circumstances where the parents die or become incapacitated, or if a child receives an inheritance or proceeds of a lawsuit of insurance policy in excess of $15,000, the court must appoint a guardian.

Both parents or a surviving parent may make and file with the Clerk of Court a written declaration naming a guardian of the child's person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will in which the child is a beneficiary.