When a person cannot take care of himself or herself, a court may appoint a guardian to take care of that person and/or that person’s affairs. The person appointed a guardian is known as “ward.” A guardian has the powers and duties stated in Florida Statutes section 744.361. The Ward retains the rights stated in Florida Statutes section 744.3215.
Types of Guardianship
There are three types of guardianship: guardianship of the person, of the property, and of the person and property. The court may appoint the type of guardianship that it determines is appropriate for the ward’s incapacity.
The Guardian’s Powers and Duties
The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor has to exercise the powers of a plenary guardian. A guardian has the following duties:
- Duty to file an initial guardianship report.
- Duty to file a guardianship report annually.
- Duty to implement a guardianship plan.
- Duty to consult with other guardian, when more than one guardian has been appointed.
A guardian who is given authority over any property has the following duties:
- Protect, preserve, invest prudently, and account faithfully for any loss in the property.
- Perform all other duties required by law.
- Deliver the property of the ward to the person lawfully entitled to it at the termination of the guardianship.
The Ward’s Rights
A person who has been determined to be incapacitated retains the following rights:
- Right to have an annual review of the guardianship report and plan.
- Right to have continuing review of the need for restriction of rights.
- Right to be restored to capacity at the earliest possible time.
- Right to be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
- Right to have a qualified guardian.
- Right to remain as independent as possible.
- Right to be properly educated.
- Right to receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.
- Right to receive services and rehabilitation necessary to maximize the quality of life.
- Right to be free from discrimination because of his or her incapacity.
- Right to have access to the courts.
- Right to counsel.
- Right to receive visitors and communicate with others.
- Right to notice of all proceeding related to the determination of capacity and guardianship, unless the court finds the incapacitated person lacks ability to comprehend the notice.
- Right to privacy.
The following rights may be removed from a person by an order determining incapacity, but may NOT be delegated to the guardian:
- Right to marry: if the right to enter into a contract has been removed, the right to marry is subject to court approval.
- Right to vote.
- Right to PERSONALLY apply for government benefits.
- Right to have a driver’s license.
- Right to travel.
- Right to seek or retain employment.