Under Florida law, a guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities.
Courts are required to appoint a guardian for a minor child in circumstances where the minor’s parents die or become incapacitated, or if a minor receives inheritance or proceeds from an insurance policy or lawsuit in excess of the amount allowed by statute.
Adult guardianship on the other hand, is the process by which the court finds an individual’s ability to make decisions for himself or herself is so impaired that it is necessary for another individual to be appointed to make decisions for them. After adjudication, the subject of the guardianship is termed a “ward” and the person appointed to make decisions for the ward is the “guardian”. Guardianship is only warranted when no less restrictive alternative is available and appropriate, such as a durable power of attorney, health care surrogate or proxy, trust or other form of pre-need directive.
Florida law provides for limited as well as plenary adult guardianship. A limited guardianship is appropriate if the court finds the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property; and if the individual does not have pre-planned, written instructions for all aspects of his or her life. A plenary guardian is a person appointed by the court to exercise all delegable legal rights and powers of the adult ward after the court makes a finding of incapacity. Wards in plenary guardianships are, by definition, unable to care for themselves.
All adult and minor guardianships are subject to court oversight. The guardian reports to the court annually to account for all changes to the ward’s property. The guardian is understood to have invested, used, or retained the ward’s property in order to make sure it is available for the ward at a later date. Other than financial affairs, the guardian also submits an annual plan outlining the ways the guardian intends to address the ward’s medical, mental and other needs. Guardians must be represented by an attorney who will serve as “attorney of record.” Guardians are usually required to furnish a bond and may be required to complete a court-approved training program. The Clerk of the Court reviews all annual reports of guardians of the ward and property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed by the court.
The legal authority for guardianship in Florida is found in Chapter 744, Florida Statutes. The court rules that control the relationships among the court, the ward, the guardian, and the attorney are found in the Florida Probate Rules. These statutes and rules set forth the duties and obligations of guardians and attorneys, as well as the court, to ensure that they act in the best interests of the ward, minor, or person who is alleged incapacitated.