The term guardianship describes a legal relationship in which an individual known as a “guardian” is appointed by the probate court to make decisions on behalf of a “ward,” someone the court has declared legally incapacitated and thus restricted in their rights. Given these circumstances, Guardianship Probate is a delicate and often complicated process that should not be taken lightly. That is why Florida Probate Rules require guardians to be represented by a state-licensed attorney, and why all guardians should seek the expertise of a Guardianship Attorney with experience in this specialized area of law.
Jurado & Associates, P.A. recognizes the great responsibility conferred upon guardians by the State of Florida and provides a wide range of Guardianship Probate Services to help them carry out their duties in the interests of their ward and in accordance with Florida law.
The Guardianship Probate Process
Guardianship exists to protect the rights and interests of individuals whose functional limitations prevent them from being able to make their own decisions, such as for end-of-life care or estate planning. It is commonly used for people suffering advance dementia, Alzheimer’s disease, a developmental disability, chronic illness, or any other conditions that leave them severely incapacitated. (It is not to be confused the Guardian ad Litem program, which is designed to safeguard abused and neglected children.)
Because guardianship necessarily restricts the rights and freedoms of an individual to make their own decisions, Florida law recognizes it as a last resort and thus require the following process be undertaken to ensure that the alleged incapacitated person (AIP) actually requires guardianship:
- First, a petition must be filed with the probate court to determine whether the prospective ward lacks incapacity. Any “competent adult” can file the petition if they attest to the alleged incapacitated person requiring guardians.
- Upon the filing of the petition, the court will appoint a three-member examining committee, which always includes at least one licensed medical expert, to evaluate the claims and draft a report. The court will also appoint an attorney to represent the alleged incapacitated person.
- The court will hold a hearing is held to review the examining committee’s report. Even if the court concludes that the person is incapacitated, it must still determine if there is a less restrictive alternative to guardianship.
- If the court determines the individual is incapacitated and there are no less restrictive alternatives, it will issue letters of guardianship appointing someone as guardian of that individual, who is then declared a ward of the guardian. Any competent adult can serve as guardian so long as they are of sound mind, have not been convicted of a felony, and have never been judicially determined (or found guilty) of abuse, abandonment, or neglect of a child.
The process to determine whether Guardianship Probate is needed can take up to about a month to complete. Depending on the circumstances, the court may further decide whether the guardianship is needed for the person, the property, or both.
Duties and Responsibilities of the Guardian
The guardian of the person may exercise only the personal rights that have been explicitly removed from the ward by the court and delegated to the guardian. These may include the right to enter a contract, apply for public benefits, consent to medical treatment, and initiate or defend against a lawsuit.
The guardian of the property has much of the same authority as the guardian of the person, except they cannot sell, transfer, mortgage, or gift any of the ward’s property without prior approval from the court, which will have the final say on whether any proposed transactions are appropriate for the ward. Thus, property belonging to the ward—such as financial accounts, automobiles, and real estate—may need to be retitled or registered in the name of the guardianship, but not in the guardian’s name only. For example, the deed to a ward’s property may name the title holder as “John Doe, guardian for Jane Smith.”
The guardian of both person and property will have all the above-mentioned duties and obligations, which include filing various statutory documents with the court. These include an initial plan that set forth provisions on how the ward’s needs and interests will be met, an inventory of all known assets and property of the ward, and an annual accounting of any and all disbursements made with the ward’s assets. These plans and reports must be filed annually so the court can periodically monitor the guardianship and ensure everything is in order.
Additionally, all guardians are mandated by the Florida Statutes to complete an eight-hour training course within four months of their appointment. (A guardian of the property for a minor is only required to receive four hours of training and instruction.)
Guardianship Probate Services from Jurado & Associates, P.A.
If the prospect of serving as a guardian seems daunting, you are not alone: There is good reason why Florida requires all guardians to be represented by a state-licensed attorney. Yet not every lawyer has the experience or expertise to handle all the complexities of the guardianship process. That is why you need a Guardianship Attorney who understands the magnitude of your role and how best to fulfill your duties and compliance requirement.
Jurado & Associate has both the experience and knowledge to provide comprehensive and trustworthy Guardianship Probate Services. Our attorneys will serve as your trusted partner throughout this complex but vital process, from filing a petition with the probate court to making sure you properly complex with the initial and annual reporting requirements. If you are currently serving as a guardian or are exploring guardianship probate for someone you love, call (305) 921-0976 or email [email protected] for a consultation.