Having a Florida Guardian appointed involves two separate court determinations. The first court proceeding is the Incapacity proceeding where the Florida court determines whether the person is incapacitated as defined by Florida law. The second Guardianship proceeding is where the Florida court actually determines who will serve a guardian. All Guardians are required to be represented by a Florida Lawyer (See Florida Probate Rule 5.030(a) ), submit to a criminal background check, and take an 8 hour course in Guardianship duties within 9 months of being appointed.
Step 1: (Determine Capacity). See Florida Statute
Florida’s Guardianship Statutes have been written to protect our freedom and independence. Therefore, the courts presume a person has capacity and is able to make decisions on their own until adjudicated by the courts to not have capacity. (See Florida Probate Rules 5.550 and Florida Probate Rule 5.030(a)” target=new>Florida Statute 744.3201 for what must be contained in the Petition to Determine Capacity).
Petition filed: A Petition to Determine the Persons Capacity is filed with the County where the person resides. The petition can be filed by a family member, concerned third party, or the Counties Adult protective Services. The petitioner has the burden to prove that the person being alleged incapacitated is incapacitated in the court’s eyes. Witnesses may very well be required to prove the incapacity.
Court Appoints Attorney: Within five days of filing the petition, the County court will appoint an attorney ad litem to represent the alleged incapacitated person (or the person can choose their own attorney to represent them) in the Incapacity proceeding and the Guardianship proceedings. Also within 5 days of filing the Petition to Determine Capacity, the courts will appoint a three (3) person panel to review the persons level of capacity and need for appointing a Guardian. This examining committee is typically includes a psychiatrist, a psychologist, and a social worker. The committee members will individually meet with the person whose capacity is being determined, talk with family members, neighbors, and health care providers.
A Mental exam, physical exam, and functional assessment are included in this determination process.
The examining committee members will submit to the courts a recommendation. Under Florida Statute 744.3215, the reports of examining committee are due to the courts within 15 days of being appointed.
The Incapacity Hearing: is considered adversarial (meaning contested) and must be set within fourteen (14) days from filing the examining committee reports. (Florida Statute 744.331(5)(a)). Depending on the county in which the proceeding is filed, the incapacity hearing will be before the Judge or a General Master. The person is entitled to be at the hearing, the examining committee reports are reviewed by the Judge or General Master. Evidence and testimony is allowed to be presented at the proceeding. The Judge then decides on whether to adjudicate the person incapacitated or not. If a General Master presides over the hearing, his/her recommendation of capacity is sent to the Judge who then enters an order after review, as he/she deems appropriate given the General master’s recommendation and findings.
All Incapacity Hearing proceedings are closed to the public and considered confidential in order to preserve the dignity and privacy of the alleged incapacitated person.
STEP 2: THE GUARDIANSHIP PROCEEDING
This portion of the proceedings only happens if the person has been adjudicated incapable of handling his/her own affairs.
Type/Extent of Guardianship: The next step is for the court to determine whether to limit the Guardianship to defined responsibilities or make the Guardianship a full/Plenary Guardianship (Authority of Guardian over all decisions for the person).
Who can serve as Guardian: Florida resident eighteen (18) or older, a Non-Florida resident over age 18 can be appointed provided proposed Guardian is over eighteen (18) so long as he/she is a lineal descendant of the proposed incapacitated. No person who has been convicted of a felony, abuse, or is incapacitated may serve as a Guardian. See Florida Statute 744.309
Guardians Ability Reviewed: The courts also review the Guardians ability to serve in a fiduciary capacity. This means the Guardian should appear to be able to be trusted in a position of responsibility over another persons health care and financial management and decisions.
Competing Guardians Petition to be appointed: In some cases, two or more parties may want to be appointed as the Guardian. This is typical in family situations and also when the State files a petition. The immediate family can also file what is termed a “Competing Petition for Guardianship”. The proceedings are then considered adversarial. The courts then will listen to evidence from both parties and based upon the testimony and evidence presented will enter an order appointing the Guardian it believes best suited to serve in such a trusted/Fiduciary capacity.
If there are competing Guardianship petitions filed, it is recommended an attorney well versed in Incapacity, Guardianship law, Florida Estate Planning law, and Florida Elder Law be retained to assist in the proceedings.
Guardian Appointed: If the courts feel the Guardian is trustworthy and qualifies to serve as a Guardian, the court will issue Letters of Administration and an Order Appointing the Guardian outlining what powers the Guardian will have over the incapacitated person’s affairs.
Bond Required: The Court will then determine what amount of Bond will be required of the Guardian of the Property. A Bond is best described as a hybrid insurance policy protecting the incapacitated persons financial matters from misappropriation or misuse by the Guardian.
Costs of Guardianship: The cost of establishing a Guardianship can be between of $3,500 and $6,000 depending on the level that the guardianship is contested and if there are conflicting opinions on who should manage the ward’s affairs. In addition, the court costs and examining committee fees are approximately $1,000.00.
When is a Guardian Appointed: a Guardian is ordered appointed by the courts where a person either does not have advanced directives in place or when those in place will not serve the interests of the incapacitated person. Generally these documents include a valid Durable Power of Attorney, Healthcare Surrogate Designation, HIPAA release, and Living Will. Often there is also a preneed guardian document which helps determine who will be appointed or not appointed as a guardian in the event one is needed.
Courts Discretion to Appoint Guardian Limited: Courts must order the least restrictive means to ensure a persons affairs are managed properly. Cost to draft the Durable Power of Attorney, Healthcare Surrogate Designation and Living Will is approximately $400-600 total. However in order to execute the documents a person must have mental capacity to do so, understand what he/she is signing and be able to make an informed decision at the time of signing as to who he/she wants to appoint.
This court appointed Guardian’s actions and responsibilities are monitored by the court. The Florida Guardian’s responsibilities are outlined in the Florida Statutes and the Florida Guardian must must file accountings and reports with the court periodically. The Guardian has a legal duty and responsibility to protect the a person he/she is appointed to help.