Guardianship

What is a Legal Guardianship?

A guardianship is a special legal relationship between two individuals under which one individual is granted the lawful authority to make decisions on behalf of, and in lieu of, the other.

Occasionally, either children or adults need someone to take care of their financial or personal affairs due to their inability to care for these matters themselves. For example, a minor child who inherits a large sum of money from deceased parents is unlikely to understand how to manage his or her finances simply as a result of youth, inexperience, and a lack of knowledge in such matters. In contrast, an elderly or infirm person may be unable to care for his own personal or financial needs because of a different type of mental or physical disability or infirmity.

When this happens, a court may appoint another person to be that individual’s guardian, and that individual officially becomes a “ward” of the guardian. The guardian then acts as a surrogate for that individual—that is, he or she is given the right to make decisions on behalf of that person with respect to financial matters and personal affairs, and the ward is legally deprived of the authority to make such decisions for himself or herself.

When this happens, a court may appoint another person to be that individual’s guardian, and that individual officially becomes a “ward” of the guardian. The guardian then acts as a surrogate for that individual—that is, he or she is given the right to make decisions on behalf of that person with respect to financial matters and personal affairs, and the ward is legally deprived of the authority to make such decisions for himself or herself.

When a guardian is appointed, at all times, the guardian must base their decisions upon and act in the best interests of the ward.  The guardian’s performance of his or her responsibilities is subject to court review and oversight. A guardian must be a resident of the state of Florida who is 18 years of age, a non-resident of the state if he or she is related to the ward by lineal consanguinity, a legally adopted child or adoptive parent of the ward, a spouse, sibling, uncle, aunt, niece, or nephew  of the ward, or someone related by lineal consanguinity to any such person or the spouse of an aforementioned person. A person is disqualified to serve as a guardian if he or she has been convicted of a felony, is incapable of discharging the duties of a guardian or is unsuitable to perform the duties of a guardian, anyone who has been judicially determined to have committed abuse, abandonment, or neglect against a child, or who has been found guilty of certain offenses. Professional guardians may be appointed and examples of professional guardians are: a trust company, bank, a nonprofit corporate guardian, a guardian, a health care provided, or a for-profit corporate guardian if they qualify under Florida Statute §744.309.

A guardian is either a guardian of person, of property, or of both, depending on the level of incapacity of the ward and/or the ward’s estate. A guardian of one’s person has the responsibility to ensure the ward’s safety and comfort, and to maintain the ward’s lifestyle and the financial ability of their estate to sustain that lifestyle. On the other hand, a guardian of one’s property has the responsibility to inventory and marshal the property, file an annual accounting of the property, and manage and invest the property so as to enhance the value of the property for future distribution.

The specific terms that govern the rules, procedures, duties, obligations, and relationship between the guardian and the ward are set out in Florida Statutes, Chapter 744, as well as Part III of the Probate Rules for Florida Rules of Court. The advice of an experienced Miami guardianship attorney can be critical to navigating these complex requirements.

When is it Permissible to Appoint a Guardian for Another Individual?

Among other provisions, the Florida statutes and regulations governing guardianships spell out when a guardian must, or in some cases, may, be appointed for another individual. In general terms, in the case of a minor, a guardian is appointed primarily in cases where the parents die or are otherwise incapable of caring for a child. A guardian may also be appointed for a minor in cases where the minor receives a significant sum of money through an inheritance, an insurance policy, or as proceeds from a lawsuit. In such cases, even if the child’s parents are still alive, the court will appoint a guardian to oversee the child’s financial and personal affairs to make sure that the child, who is the rightful owner, receives the benefit of the funds until such time, if ever, that the child is able to manage his affairs on his own.

In the case of adults, guardians are appointed where the court finds that an individual’s ability to make responsible decisions is so impaired that it is necessary, and in the best interests of the adult, that the power to make these decisions should be granted to another individual. However, Florida law also provides that an adult may voluntarily choose to have a guardian appointed. This may happen, for example, in a case where an individual is mentally competent, but his affairs are so burdensome or complicated, and/or his physical health so impaired that he concludes that it is in his own best interests to have someone else manage them. In a voluntary guardianship, the individual petitions the court to have a guardian appointed for him.

In other cases, adult guardianship is involuntary. There are different types of adult guardianships, depending upon what the court determines to be necessary. Accordingly, the court regards plenary—or “complete”—guardianship essentially as a “last resort,” where lesser protective measures—for example, vesting another individual with a durable power of attorney, creating a trust, executing an advanced directive for medical treatment, establishing a limited guardianship, or some other arrangement—are deemed insufficient to protect the adult from the potential negative or dire consequences of letting him manage his affairs in light of his impairment, whether that means he is likely to squander all of his own money, or whether he is susceptible of being taken advantage of or manipulated by others financially or otherwise. A plenary guardianship is only suitable where an adult individual can be shown to be completely incapable of caring for himself. Under those circumstances, the guardian is empowered to make all important decisions for that individual.

Limited guardianships are therefore preferred, and only where appropriate. A limited guardianship may be imposed where the court finds that a ward is capable of performing some of the tasks necessary to take care of their person or property, but not all of them. In these cases, only some powers are delegated to the guardian. When a limited guardianship is created, the guardian’s powers are strictly circumscribed according to the specific delegation of powers given to them, and the ward retains the right to make certain decisions for himself over which the guardian may not exercise any control.

A guardian may resign or be removed by the court. If a guardian resigns, he or she must give notice and file a final report of the guardianship to the court. The resigning guardian must also deliver to the successor guardian all property of the ward, records concerning the ward or of the guardianship, and all money due to the ward. A guardian may be removed for reasons including fraud, failure to perform his or her duties, abuse of power, incapacity or illness, including substance abuse, failure to comply with court orders, conviction of a felony, mismanagement of the ward's property, or improper management of the ward's assets.

Clearly, there are dangers inherent in giving one individual the power to make decisions for another individual, particularly with respect to handling financial affairs where significant sums of money may be involved. And frequently, a ward may strongly disapprove of or dislike the decisions made by a guardian. Consequently, Florida probate courts oversee not only the establishment of guardianships, but all guardianship relationships. Since the court’s goal in appointing a guardian is to protect the ward, the court’s oversight naturally extends to protecting the minor ward or adult ward from any possibility of abuse or self-dealing by the guardian (that is, using his power to benefit himself or those close to him). Accordingly, the court does not merely appoint a guardian for a ward and close the matter, but instead monitors the guardianship on an ongoing basis.

The Law Offices of Hertz • Sager Can Help You With Your Guardianship Questions

The information provided above regarding guardianship in Florida is very general, and is not an adequate substitute for specific legal advice or legal information if you or a close relative needs to consider establishing a guardianship, needs help in fighting a petition for guardianship, or is aware of problems regarding an existing guardianship arrangement. The laws, regulations, and procedures governing guardianship in Florida are very detail-intensive and specific, and your rights, responsibilities, and remedies will depend very much upon the specific facts of your situation.

If you need advice on guardianship for either a minor or an adult, contact the guardianship attorneys at the Florida family law firm of Hertz • Sager, in Coral Gables, Florida at 305.444.3323, or use the online contact form right here on this website.