A guardian is a person designated by the court who can make personal and/or financial decisions for another individual who has become incapacitated or is a minor. Once a court makes someone a guardian, the individual who is now under the guardian’s care is considered a “ward.”
Guardianship of an Adult
To become a guardian to an adult, it must be proved that the individual has become incapacitated to the point where their decisions must be made by another person. This option is only available when there is no less restrictive alternative. There are two main types of guardianship, voluntary and involuntary.
Voluntary Guardianship
Voluntary guardianship is established when a mentally competent individual petitions the court to have a guardian appointed to manage their estate because they are no longer able to do so. It is the objective of the state to ensure that the least restrictive type of guardianship is used for each situation. This is why Florida allows for both limited and plenary guardianship. Limited guardianship is used for individuals who can handle some tasks necessary to care for themselves and their assets, but not all.
Involuntary Guardianship
Involuntary guardianship is established when a competent adult petitions the court to decide on another individual’s mental incapacity. If an adult is deemed incompetent, the court can determine who should become the guardian and give that person the right to make decisions on behalf of the incapacitated individual. This type of guardianship is the most restrictive and can be called plenary guardianship.
Guardianship of a Minor
For minors, the main reasons why guardianship is granted are when the child’s parents are deceased, the parents become incapacitated, or the child receives a large sum of money. There are two main types of guardianship over a minor, guardianship of the person or guardianship of the property. The guardianship of the person allows a guardian to make life decisions for a minor, like a parent. While this sounds like adopting a child, the main difference is that guardianship is temporary. Regardless of a guardian’s opinion on a minor’s maturity or other factors, when the minor reaches the age of 18 the guardianship is terminated. Guardianship of the property is established when a minor needs their assets, usually financial, managed on their behalf. Parents are also able to fill out a pre-need guardian directive to choose a guardian for their child, establishing who will care for the child due to the parent(s) passing away or becoming incapacitated. While this can also be addressed in a will, the pre-need guardian directive will come into effect if the parent(s) are alive but become incapacitated.
The Guardianship Process
The following are the steps necessary for Guardianship to be established in Florida:
- A petition must be filed with the court by a competent adult.
- The court will appoint an examination committee to evaluate the petition and allegedly incapacitated individual, this report will be given to the court. At this point, the court will also ensure an attorney is appointed to represent the allegedly incapacitated individual.
- Next, a hearing will be held to go over what the committee’s reports have concluded. If the court determines an individual is incapacitated, they will then decide whether this is the least restrictive option available for them.
- If it is determined that guardianship is appropriate, the court will appoint a guardian. The court will also determine whether the guardian will oversee the person, their property, or both.
Who is eligible to become a guardian?
Florida statues outline the requirements that a person must meet to become a guardian. The general requirements are that a guardian must be at least 18 years old and has not committed a felony. The court will ensure that the guardian is suitable to care for and make decisions for another person.
Alternatives to Guardianship
There are many alternatives to guardianship that an individual can appoint or have appointed. These include a power of attorney, a trust created to manage finances, or a health care surrogate to make medical decisions. These options are much less restrictive, and they allow for the incapacitated person to not become another’s ward. By speaking with an attorney, an individual can better understand their options and learn what is best for their situation.