Florida Guardianship: When Is It Required and How Does It Work?

Florida guardianship is a legal proceeding in which a court appoints a guardian to make personal and financial decisions on behalf of a person—called the ward—who has been determined to lack the capacity to manage their own affairs. While guardianship serves an important protective function, it is also one of the most restrictive legal interventions available, which is why Florida law treats it as a last resort.

When Is Guardianship Required?

Guardianship becomes necessary when an individual is unable to make informed decisions about their personal care, finances, or both, and no less restrictive alternative exists. Common situations include:

• Dementia or Alzheimer's disease that has progressed to the point where the person cannot manage daily affairs
• Severe mental illness that impairs decision-making capacity
• Traumatic brain injury resulting in permanent cognitive impairment
• Developmental disabilities when an individual reaches adulthood and cannot manage their own affairs
• No advance directives in place—if the incapacitated person never signed a durable power of attorney or healthcare surrogate designation, guardianship may be the only option

  The key factor is whether the person already has legal documents that authorize someone to act on their behalf. If a valid durable power of attorney and healthcare surrogate designation are in place, guardianship is often unnecessary.

  Types of Guardianship in Florida

  Florida Statutes Chapter 744 establishes several types of guardianship:

  Plenary Guardianship: The guardian is granted authority over all aspects of the ward's personal and financial affairs. The ward loses the right to make any legal decisions. This is the most restrictive form and is used only when the court determines that the ward lacks capacity in all areas.

  Limited Guardianship: The guardian is granted authority over specific areas where the ward lacks capacity, while the ward retains rights in areas where they still have capacity. For example, a ward might retain the right to vote and make social decisions but have a guardian for financial matters.

  Guardian of the Person: The guardian makes decisions about the ward's personal care, including medical treatment, living arrangements, and daily needs.

  Guardian of the Property: The guardian manages the ward's financial affairs, including paying bills, managing investments, and handling real estate.

  Emergency Temporary Guardianship: Granted on an expedited basis when there is an imminent danger to the person or their property. A temporary guardian may be appointed for up to 90 days while a full guardianship proceeding is underway.

  The Guardianship Court Process

  The guardianship process in Florida involves several steps:

  1. Filing a Petition: An interested person files a petition with the circuit court in the county where the alleged incapacitated person resides. The petition must describe the reasons guardianship is needed.

  2. Appointment of an Examining Committee: The court appoints a three-member committee—typically including a physician, a psychiatrist or psychologist, and a lay person—to evaluate the alleged incapacitated person and report on their capacity.

  3. Appointment of an Attorney: The court appoints an attorney to represent the alleged incapacitated person in the proceedings, ensuring their rights are protected.

  4. Hearing: The court holds a hearing to review the examining committee's report and other evidence. The alleged incapacitated person has the right to be present, testify, and present evidence.

  5. Determination of Incapacity: If the court finds the person incapacitated, it issues an order specifying the areas of incapacity and the type of guardianship needed.

  6. Appointment of Guardian: The court appoints a guardian, who must meet Florida's qualifications, pass a background check, and in most cases complete a guardianship education course.

  Costs and Timeline

  Guardianship proceedings are expensive. Costs typically include:

  • Attorney fees for the petitioner
  • Court-appointed attorney fees for the alleged incapacitated person
  • Examining committee fees
  • Court filing fees
  • Annual guardian reporting and accounting costs

    The initial process generally takes two to four months, though contested cases can take significantly longer. Ongoing guardianship costs continue for as long as the guardianship remains in effect, as the guardian must file annual plans and accountings with the court.

    Alternatives to Guardianship

    Because guardianship is restrictive and costly, Florida law encourages less restrictive alternatives:

    • Durable Power of Attorney: Authorizes a trusted person to handle financial matters without court involvement. Must be signed while the person still has capacity.
    • Healthcare Surrogate Designation: Names someone to make medical decisions. Must also be signed while the person still has capacity.
    • Living Trust: A revocable trust with a successor trustee can manage assets if the grantor becomes incapacitated.
    • Representative Payee: For individuals receiving Social Security benefits, a representative payee can be appointed to manage those specific funds.
    • Voluntary Guardianship: Available for individuals who have capacity to understand their situation but voluntarily request a guardian for assistance.

      The most effective strategy is advance planning. By executing a durable power of attorney, healthcare surrogate designation, and living trust while you are still competent, you can often eliminate the need for guardianship entirely.

      Contact our office to discuss guardianship proceedings or advance planning alternatives.