Guardianship Administration

When a guardianship is created over either a minor or an adult ward, the guardian is granted specific legal rights to make decisions for the ward. It is critical to understand that the guardian’s position with respect to the ward is not that of an advisor, but of a surrogate: the guardian’s decisions are legally binding on the ward, and the ward is legally deprived of the power to make decisions on his or her behalf.

Not all guardianships are plenary—that is, in many cases, not all guardians have power over both the person and the property of the ward. For example, in the case of a guardianship over a minor who has inherited a large sum of money, the guardianship usually extends only to have the power to manage the property of the ward, but not to makepersonal decisions on behalf of the ward (such as where they may live, where they may go to school, and so on). In the case of an incapacitated adult, the guardianship may also be limited in scope, depending upon the circumstances. In guardianship cases, the powers of the guardian are limited to the specific powers granted to the guardian by the judge in probate court.

Florida legal guardianships are governed by Florida Statutes, Chapter 744, and by the Florida Probate Rules of Court, Part III. A qualified Florida guardianship attorney can help you understand and comply with these complicated provisions.

Normally, it is a relative (often a son or daughter) or a close friend who petitions for and is granted guardianship over a ward. If no relative or friend is available, a professional guardian can also be appointed. In all instances, the court must decide that the proposed guardian is capable of fulfilling the duties of a guardian. If more than one person applies to serve as guardian, the court will hold a hearing to determine which person is best able to fulfill the role of a guardian.

The burdens and responsibilities of guardianship are not insignificant. For example, in cases where an elderly person has been taken advantage of or has had funds stolen or embezzled, the guardian may have the duty to pursue legal action to recover stolen funds or seek some other legal remedy. A guardian may also have the difficult task of trying to “undo” problems created while the ward was incapacitated, such as restoring a will to reflect terms it had before another person unduly influenced a ward. The guardian may have to remove the ward from an unsafe environment or move him away from individuals who may be abusing or manipulating him, or otherwise exerting a negative influence over him—and the guardian sometimes must make these decisions against the ward’s will.

The guardian has an ongoing duty to fulfill specific statutory responsibilities and regularly report on the management of the guardianship to the judge in probate court, which has a continuing duty to monitor the guardianship. When the guardian has authority over the property of the ward, the guardian has a duty to keep an inventory of all the property, invest or dispose of it prudently, use the income (or principal, depending upon the circumstances) for the benefit of the ward, and to submit a detailed accounting of any transactions or expenditures to the probate court every year. For some types of transactions—for example, the sale of a major asset—the guardian will need to obtain court approval before proceeding.

When a guardian has authority over the person of the ward, the guardian has the right to make certain fundamental decisions on the ward’s behalf, such as making the ward’s healthcare decisions, selecting where the ward might or should live, whether the ward may marry, and even whether the ward should have a prenuptial agreement.

In all cases, the guardian is legally accountable to the court for the decisions he or she makes regarding the ward and must retain an “attorney of record” to represent him or her before the court. Guardians must usually undergo a court-approved training program so that they understand their rights, obligations, and responsibilities to both the ward and the court, and they are also usually required to furnish a bond to the court.

The guardian is accountable to the court for fulfilling his or her responsibilities to the ward, and failure to meet these responsibilities can result in removal by the court. In addition to being responsible for the ward’s welfare and accountable to the court for the administration of the person and property of the ward, a guardian may face other challenges in the administration of the guardianship. For example, the guardian may find himself fending off litigants who dispute the guardian’s competence or allege malfeasance of his or her duties or litigating issues related to a dissolution of the ward’s marriage or enforcement of a Final Judgment for Dissolution of Marriage.

For handling these matters, which may be extensive and time-consuming, the guardian may be reimbursed from the ward’s property for any out-of-pocket costs, but is only entitled to a fee if the court awards such fees, and only if the ward has sufficient funds to cover such fees.

Guardianship administration is a grave responsibility, no matter the size of the property holdings or the nature of the incapacity that creates a need for guardianship. The practical burdens alone can be difficult to shoulder, and the legal aspects of the guardianship relationship may simply add to the difficulties for a guardian.

If you encounter problems, questions, or issues with respect to the administration of an existing or proposed guardianship, the Miami family law attorneys at the law offices of Hertz • Sager, can help. We represent clients in Coral Gables and anywhere throughout Miami-Dade County and the surrounding areas regarding all aspects of guardianship, whether you are a prospective ward, an administrator, a guardianship petitioner, or any other concerned party who needs questions answered or competent advice regarding any issue related to guardianship. If you would like a consultation, contact our Coral Gables offices at 305.444.3323, or use our online form.