Sometimes, unexpected events create situations in which parents pass away while leaving minor children or a sound person starts to lose the ability to rationally handle his or her own affairs. Upon assessing the case, a Florida court may appoint a guardian to take care of the situation.
In this article, you will find out how guardianship works in Florida.
How Does Guardianship Work in Florida? – The Basics
The term “guardianship” refers to the legal proceeding by which courts in Florida appoint a guardian to exercise the legal rights of a person that cannot exercise them on his or her own.
Under guardianship, the court will appoint a guardian, a surrogate decision-maker, to handle personal or financial decisions on behalf of a third party that has no legal capacity to do so.
Guardianship usually applies to minors, adult individuals with special needs, elderly individuals, or an adult who has become incapacitated. Therefore, distinct forms of guardianship determine the level of authority granted to a guardian and what decision he or she may handle.
Upon the appointment of a guardian, the individual subject to court-supervised guardianship is referred to as a “ward.”
Who is Allowed to Serve as a Guardian Under Florida Law?
Florida statutory rules provide distinct eligibility requirements for state residents and non-residents. Florida Statutes §744.309 (1)(a) provides that “any resident of this state who is sui juris (independent) and is 18 years of age or older is qualified to act as guardian of a ward.”
Also, Florida Statutes §744.309 (1)(b) expressly state that “no judge shall act as guardian after this law becomes effective, except when he or she is:
- Related to the ward by blood, marriage, or adoption, or
- Has maintained a close relationship with the ward or the ward’s family and serves without compensation”
Regarding non-resident guardians, Florida Statutes §744.309 (2) adds that “a nonresident of the state may serve as guardian of a resident ward if he or she is:
- Related by lineal consanguinity to the ward
- A legally adopted child or adoptive parent of the ward
- A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person, or
- The spouse of a person otherwise qualified under this section”
Florida Guardianship – Is it Mandatory or Voluntary Under State Law?
Florida statutory rules provide that, depending on the case’s circumstances, the court may allow either voluntary or involuntary guardianship.
For example, a voluntary guardianship may be determined for an adult individual who has voluntarily filed a petition in court for the appointment of a guardian. It is quite common in cases where the person is still mentally competent but is unable to manage his or her personal affairs
In most cases, guardianship is only determined by a court when there is no less restrictive alternative available. Therefore, depending on the case, it is possible to prevent guardianship by executing a power of attorney, a health care surrogate designation, or other similar pre-need directives.
Is Florida Guardianship Permanent Upon Court Order?
In Florida, guardianship is not necessarily permanent. Hence, if the ward no longer needs guardianship, it is possible to file a petition in court to restore the ward’s rights to act on his or her own behalf.
If guardianship was originally appointed due to the ward’s incapacitation, the ward must go through a re-examination process to assess whether his or her rights may be fully or partially restored.