"Robert G. Lowe, PL" and rgllaw® are trademarks for legal services.
This site was last updated August 2011.
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Robert G Lowe, PL
Attorney and Counselor at Law
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PO Box 16626
Clearwater, Florida 33766
Phone: 727.647.3700
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FLORIDA GUARDIANSHIP FAQ |
For personalized answers to your specific situation please contact Bob by e-mail or by phone at 727-647-3700. |
| What is a guardianship? A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person or ward. A guardian's powers may be plenary, meaning that they may be authorized to make all or nearly all of the decisions for their ward or limited meaning that the guardian may only make decisions or give assistance within specific aspects or areas of their ward's care. top |
| What is a guardian? A guardian is an individual or institution such as a bank trust department appointed by the court to care for an incapacitated person-called a "ward"-or for the ward's assets. top |
| How is a person determined to be incapacitated? Any adult may file with the court a petition to determine another person's incapacity setting forth the factual information upon which they base their belief that the person is incapacitated. The court then appoints a committee of two professionals, usually physicians, and a lay person to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing. top |
| Who may serve as guardian? Any adult resident of Florida can serve as a guardian. A close relative of the ward who does not live in Florida may also serve as a guardian. Persons who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Institutions such as a bank trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed guardian, but a bank trust department may only act as guardian of the property. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of preneed guardian or at the hearing. top |
| What does a guardian do? A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward'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. The guardian of the ward's person may exercise those rights that have been removed from the ward 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 ward. The guardian of the person must also present to the court every year a detailed plan for the ward's care. top |
| Is a guardian accountable? Yes. 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 person 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. top |
| Is guardianship permanent? Not always. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, the court will have the ward reexamined and can restore some or all of the person's rights. Or a guardian can resign and another family member could handle matters or possibly a professional guardian could be appointed. top |
| Is guardianship the only means of helping an incapacitated person? No. 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. top |
| What about guardians for 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 or insurance policy exceeding $15,000, the court must appoint a guardian. Both parents or a surviving parent may make and file with the clerk of the 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. top |
| What are the alternatives to guardianship? Taking away an individual's rights is a serious matter and 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 healthcare directive, a durable power of attorney and a living trust while competent he or she may not require a guardian in the event of incapacity. A competent individual can also execute a Pre-Need Guardianship Designation that allows them to select a guardian of choice should a guardianship proceeding become necessary. top |
| Florida Guardianship Handbook The Florida Statewide Public Guardian Office publishes the pamphlet Guardianship Basics, A Handbook for Guardians as an easy reference guide for persons interested in the guardianship process and or becoming a guardian. Corrections to the handbook are available here. top |
| The Florida Bar Copyright Information This information has been prepared by the Consumer Protection Law Committee of The Florida Bar and the Bar's Public Information Office and is offered as a courtesy by RGLLAW. Copyright, The Florida Bar February 2004. top |
| Where can I go to obtain legal advice on this issue? The material on this web site represents general legal advice. Since the law is continually changing, some provisions may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case. If you believe you need legal advice, call your attorney. If you do not have an attorney, please contact Bob by e-mail or by phone at 727-647-3700. Or call The Florida Bar Lawyer Referral Service at 1-800-342-8011, or the local lawyer referral service or legal aid office listed in the yellow pages of your telephone book. top |
For personalized answers to your specific situation please contact Bob by e-mail or by phone at 727-647-3700.
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© Copyright 2011-2004, Robert G. Lowe, PL, all rights reserved. "Robert G. Lowe, PL" and rgllaw® are trademarks for legal services. This site was last updated August 2011. |