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What Is A Guardianship?
A guardianship is a legal proceeding in Florida circuit courts in which a person is named as a guardian to a minor, or to an adult with physical or mental disabilities. A guardianship is required when the court finds a person physically or mentally impaired and incapable of making their own decisions, or for a minor.
A guardian is a court-appointed person legally responsible for someone unable to manage their own personal or financial affairs. A legal guardian in Florida must be:
- 18 years old
- A Florida resident, or,
- A non-resident blood relative to the ward
- Or, related by marriage to a ward
What Does A Guardian Do?
In a Florida guardianship proceeding, the court gives the right to make decisions to a guardian. A guardian may be appointed to control the custody of a person and a person’s finances, or, to solely control the finances, or, solely to be responsible for the custody of a person.
Voluntary or Involuntary Guardianship
In Florida, there are voluntary and involuntary guardianships. The guardianship arrangement can be preplanned in a will or estate, or, it may have to be imposed by the court if circumstances change unexpectedly in a person’s life physically or mentally or both.
A voluntary guardianship is where a guardian must be appointed to exercise the legal rights of a minor and to take custody of the person under the legal age of 18.
An involuntary guardianship in Florida law requires the court to appoint a guardian for a person who becomes incapacitated and, for minors if their parents should die or become incapacitated.
A guardianship may be established for a physically or mentally disabled person or a child whose parents have died, a person with Dementia or Alzheimer’s, or who becomes unable to care for themself.
A Guardian is a Surrogate Decision Maker
What is a guardian? A guardian is a person appointed by the court to make decisions for a minor or for an adult with mental or physical disabilities. The guardian is a surrogate decision maker.
A guardian is also an institution, like a bank trust department or a non-profit corporation appointed by the court to care for an incapacitated person — called a ward — or for the ward’s assets.
Florida law requires the court to appoint a guardian for minors if parents become incapacitated or if they die or if a child receives an inheritance, lawsuit proceeds, or an insurance policy exceeding a certain amount.
Adult Guardianship
Adult guardianship is the process where the court finds that an individual’s ability to make decisions is so impaired that the court gives the right to make decisions to another person.
Florida law allows both voluntary and involuntary guardianships. A voluntary guardianship can be established for an adult who is incapable of managing her or his own estate, and who voluntarily petitions for the appointment, although they are mentally competent.
Florida Guardianship Laws Change
Florida guardianship laws change, for example, in 2020, Florida guardianship law expanded the protection of seniors and guardianship reporting requirements. The new law includes:
- Restricting professional guardians from being able to petition the court to be appointed to cases unless they are related to the person in care.
- Making it mandatory that guardians report detailed information regarding payments.
- Requiring courts to grant permission for guardians to sign do not resuscitate orders.
Why Plan For A Guardianship?
If you don’t have an estate plan to outline the guardianship of your children, or, for yourself, or your loved ones, you won’t have a say in what happens to your children, your assets, or you, if you become physically or mentally incapacitated, or if you die intestate — without a will. The court can make decisions that you may not agree with.
Florida attorney Reed Bloodworth is Founder and CEO of Bloodworth Law with offices in Orlando and in Winter Haven. The Bloodworth Law team represents clients in guardianship litigation, in estate planning, and in probate litigation.
Talk to Reed about estate planning for you or for your family which involves the establishment of guardianships to care for you, your minor children, or family members, in instances where you become physically or mentally incapacitated.