This is the legal action taken when you need to have a court order to exercise the legal right for a person who is unable to make decisions for themselves. This can be for either an adult or for a child. There are two types of actions. One for guardianship of the person and one for guardianship of a person and property. A guardianship of property is for legal and financial matters. A competency examination for an incapacitated person may also be necessary and involves the filing of a second case. A committee would be appointed to conduct an evaluation and report to the court. If the person is found to be incapacitated then the guardianship case proceeds and the person is considered the “Ward”.
There is also guardianship of an adult child who cannot take care of themselves, but if the child meets certain criteria a guardian advocate may be applied for instead of a guardianship. Also if a minor child is to receive a large financial settlement, a guardianship is instituted. In that case, a parent can act as the appointed guardian.
Once a guardianship is granted there are court requirements to file an initial plan and then annual plans. If the guardianship includes property, then full accounting of funds received and expended must be made on an annual basis. The guardian would be in charge of inventorying the property, investing prudently, and paying the necessary expenses for the incapacitated person.
Any adult resident of Florida can serve as a guardian so long as they have not been convicted of a felony. A background check is necessary and is submitted to the clerk of court prior to appointment.
To avoid a guardianship, you will want to have an advance health care directive also referred to as a health care power of attorney and surrogate, as well as a durable power of attorney whereby you appoint someone to make medical decisions and to take care of the financial affairs of the person. A person must be competent to sign these documents.
Once appointed as the guardian of the Ward, Florida Statutes require the completion of a training course within four months of appointment. This course can be found on most clerk of the court websites.
To file for guardianship, an attorney must be hired, unless you are filing a Guardian Advocate for a developmentally disabled person.