How Guardianship Works in Florida for Children & Families

Updated

In an ideal caring society, we care for people who cannot care for themselves. We expect parents to take care of their children. But the need to help others is not limited to children. We also expect people to care for adults who are disabled or have other issues.

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Under Florida law, "guardians" are people a court appoints to act on behalf of a person, their property, or both. This article describes how guardianship works in Florida for children and families.

What Types of Guardianship Exist in Florida?

There are many different types of guardianship in Florida: two main ones to understand are plenary guardianships and limited guardianships. Plenary is another word for "full" or "complete."

In a plenary guardianship, the court-appointed guardian can exercise all legal rights and powers on another person's behalf if a court finds that person cannot do anything for themselves. However, Florida law encourages exploring other options before a plenary guardian is appointed, as this can be very restrictive.

In a limited guardianship, the court appoints a guardian if one of two things are true: (i) the court has found the person is incapable of taking at least some care of themselves or their property, or (ii) when the person has voluntarily asked for a limited guardian.

Here are some other types of guardianships in Florida:

  • A "pre-need guardian" is when a person is named to serve as guardian if the requesting person can no longer take care of themselves. Any adult may name a pre-need guardian if they become incapacitated or for their children for the same reason.
  • A "standby guardian" is a person with the power to assume the duties of guardianship if the current guardian dies or can no longer serve. A standby guardian is, in effect, a successor guardian.
  • A "guardian ad litem" is a person a court appoints if a pending guardianship case represents the person who may fall under guardianship.

Below, we will discuss other types of guardianship in Florida: guardian of the person, guardian of property, guardian advocate, and emergency temporary guardian. 

Who Are the Default Guardians for Children, Older Adults, or Adults With Special Needs in Florida?

A person selected as a pre-need or standby guardian would be a "default guardian." The court appoints default guardians if they meet the following qualifications:

  • Any resident of Florida who is 18 years or older can serve as a guardian for another Florida resident.
  • Any nonresident of Florida can serve as q guardian for a Florida resident if they (i) are a relative, (ii) are a legally adopted child or adoptive parent, (iii) are a spouse, or (iv) are the spouse of any person qualified under (i) or (ii).
  • Certain people, including convicted felons or people who have committed child abuse, are ineligible to serve as guardians.

If no one qualifies, the court may appoint someone unrelated to the individual but whom they find otherwise qualified. To do this, the court will give preference to someone who:

  • Is related by blood or marriage to the individual.
  • Has relevant educational, professional, or business experience.
  • Has the capacity to manage the person's financial resources.
  • Can meet the requirements of the law and the individual's unique needs. 

What Forms Do You Need to File for Guardianship in Florida?

The following are among the forms you may need to file for guardianship in Florida:

  • Petition for Appointment of Guardian
  • Petition to Determine Incapacity
  • Petition for Appointment of Guardian Advocate of the Person
  • Notice of Filing of A Petition for Appointment of Guardian Advocate and Notice of Hearing
  • Order for Appointment of Guardian
  • Order Appointing Guardian Advocate
  • Letters of Guardianship of the Person
  • Letters of Guardianship of the Property
  • Letters of Guardian Advocate of the Person
  • Inventory
  • Initial Guardianship Plan for Minor
  • Annual Guardianship Plan for Minor
  • Initial Guardianship Plan for Adult
  • Annual Guardianship Plan for Adult
  • Physician's Report

How Do You File for Guardianship in Florida?

Filing for guardianship in Florida generally is a two-step process.

First, you must file a petition in court, e.g., a Petition to Determine Incapacity. When you file, a court can appoint three experts -- generally a psychiatrist or other physician and two other expert medical professionals -- to evaluate the person subject to the petition. Each expert files a report with the court.

Then, the court conducts a hearing and issues a ruling on the petition.   

How Do You Assign a Guardian for a Child in Florida?

It is important to remember that a court ultimately assigns guardianship in Florida. Even if you designate a person as a pre-need or standby guardian for a child, the court must still approve them.

How Guardianship Works for Children

There are two types of guardianship for children in Florida: guardianship of the person and guardianship of property.

Guardianship of the person

Guardianship of the person is when someone other than the child's parents has the authority to make health care, residence, and school-related decisions for the child. It can be necessary when a child's biological parents are deceased or disabled.

Guardianship of property

Guardianship of property is when someone has the authority to manage the child's property. This can be necessary when the child owns something worth more than $15,000, such as gifts, inheritance, or other assets.

Guardianship of the property relates explicitly to the child's property and not their personal care. All guardians of the person and guardians of the property for a minor child are considered plenary guardians.

How Guardianship Works for Older Adults

Guardianship in Florida can also be applied to adults if the person qualifies as an "incapacitated person."

Under Florida law, an incapacitated person is someone the court has determined cannot manage at least some of their property or meet some essential health and safety requirements.

As with guardianship for minors, guardianship for adults can include guardians of the person and guardians of property. 

How Guardianship Works for Adults With Developmental Disabilities or Special Needs

Besides children and adults who are incapacitated, another use of guardianship in Florida is for adults with developmental disabilities or special needs.

Under Florida law, a "developmental disability" means a disorder or syndrome that:

  1. Is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome.
  2. Manifests before the age of 18.
  3. Constitutes a substantial handicap that one can reasonably expect to continue indefinitely.

The guardian for a person with a developmental disability is called a "guardian advocate." A court can appoint a guardian advocate for a person with developmental disabilities (i) if the person cannot do some of the tasks necessary to care for their person or property, or (ii) if the person has voluntarily petitioned for the appointment of a guardian advocate.

The court can appoint a guardian advocate even if it has not determined that the person with developmental disabilities is incapacitated. Under Florida law, a guardian advocate is considered a less restrictive form of guardianship.

A guardian advocate also can be appointed if a psychiatrist determines that a person receiving mental health treatment is incompetent to consent to treatment.  

Frequently Asked Questions: Guardianship in Florida

Guardianship in Florida is a complex topic. The following are some of the frequently asked questions about guardianship in Florida:

How long is temporary guardianship in Florida?

While a court is deciding on a guardianship petition, emergencies may arise for which appointing an emergency temporary guardian is necessary. The court establishes an emergency temporary guardianship if a person is in imminent danger, or if the person's property is in danger of being wasted, misappropriated, or lost.

An emergency temporary guardianship expires after 90 days. It can be extended for 90 more days if the emergency conditions persist.

What's the difference between guardianship, conservatorship, and custody in Florida?

Conservatorship in Florida is different from guardianship. Conservatorship refers to caring for "absentees," i.e., people who have gone missing, possibly during a war, disappeared while suffering from a mental illness, or just vanished without a trace.

Custody in Florida also differs from guardianship; custody only applies to children and "personal care" issues. 

Can you get guardianship without going to court in Florida?

Because guardianship is a litigation process, it involves legal fees, court costs, and time delays. Before a guardianship situation arises, people should consider the following possible alternatives:

  • Durable Power of Attorney: With a durable power of attorney, you can designate a person (and successor persons) to make property and financial decisions for you if you become disabled. A durable power of attorney -- which is, in effect, a power of attorney of property -- does not require court approval.
  • Health Care Surrogate: With a health care surrogate, you can designate a person (and successor persons) to make medical and health care decisions for you if you become disabled. Like a medical power of attorney, a health care surrogate does not require court approval.
  • Living Trust: With a living trust, you can designate successor trustees to manage your assets if you become disabled. A living trust does not require court approval and can also serve other estate planning purposes, including avoiding probate on death.

Guardianship is a Valuable Tool in Florida 

Ideally, you have engaged in some prior planning and have a durable power of attorney, health care surrogate, and/or living trust before you become disabled. However, if you did not make a plan, guardianship is a valuable tool in Florida that can enable someone to act on your behalf and care for you and your property. 

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