Guardianships in Florida: What You Need to Know
The topic of guardianship is often avoided until it can’t be. Unfortunately, making decisions while facing a crisis is not only stressful but can lead to outcomes that are less than ideal. If you are facing a situation where you may need to seek guardianship, the sooner you contact a guardianship attorney, the more likely you are to get the outcome you and your loved ones deserve.
What Is a Guardian?
It may be helpful to start by making sure that we are clear about what a guardian is. A guardian is a person who has legal authority granted by a court to make personal or financial decisions on behalf of another person, either:
- A minor (someone who is under the age of 18); or
- An adult with physical or mental disabilities that prohibit them from caring for themselves in one or more aspects of their lives.
The person who is in the care of the guardian is referred to as a “ward.”
The guardian can be either a person or an entity such as a non-profit organization. However, entities can only exercise control over property, such as when a minor receives a substantial legal settlement or inheritance. Otherwise, the guardian must be a person. Anyone can serve as a guardian, provided that they meet the following requirements:
- They are an adult
- They are a resident of the state of Florida
- They are capable of discharging their responsibilities as guardian
- They have no felony convictions
A guardian does not need to be related to the ward. Obviously, choosing the right guardian is a very important decision. If you have a loved one who you think needs someone to care for them, a guardianship attorney can provide guidance in choosing the right person.
Common Scenarios Where People Seek Guardianships
Many guardianships arise from some kind of traumatic event, and as a result, it can be difficult for people to recognize the steps they need to take to protect a loved one’s interests. People commonly seek guardianships in situations such as the following:
- An adult family member is suffering from dementia
- A loved one has suffered a traumatic brain injury resulting in severe mental disability
- A family member is suffering from severe mental illness that prohibits them from making sound decisions
- A minor whose parents are unable to care for them due to illness, injury, or other reasons
- A minor whose parents have died
While it may be obvious in some cases, it isn’t always easy to know when you should seek guardianship for a loved one who is suffering. A guardianship attorney can help you make the right decision.
Understand the Limits of Guardianships
One of the reasons why the decision to pursue guardianship is so difficult is that many people are reluctant to take away a loved one’s autonomy and freedom. They may have periods of time where they are lucid or they may have some ability to make limited decisions. Thankfully, under Florida law, a guardianship is not necessarily an “all or nothing” arrangement. Instead, the courts permit a guardianship only when there is no less restrictive alternative such as a durable power of attorney.
In addition, the law strives to establish guardianships that are as minimally restrictive as possible. This means that loved ones will be allowed to participate in decisions about their well-being to the extent they are able to. In other words, the guardianship can be tailored to their unique needs and abilities in order to protect their freedom and dignity.
It should also be noted that this also gives family members some basis for challenging a guardian’s decisions or actions if they feel that they have overreached their authority as determined by the court. An experienced guardianship attorney can explain what you can expect and help you propose a guardianship that best meets your loved one’s needs.
Different Types of Guardianships
There are two main types of guardianship:
- Voluntary guardianships, where an adult who is mentally competent is unable to manage their own affairs voluntarily seeks a guardianship for themselves. For example, an older woman who is becoming forgetful may choose to have her adult son appointed as her legal guardian to make sure that her bills are paid on time and that other obligations are met.
- Involuntary guardianships, where one person seeks to have a guardian appointed for another person. The process is involuntary because the other person is either incapable of or unwilling to seek guardianship for themselves. Involuntary guardianships pose the most challenges because it involves depriving someone of their ability to make decisions on their own behalf to some extent.
Within these two categories, there are various different types of guardianships:
- Limited guardianships, where the guardian has limited authority to make decisions on their behalf. For example, someone may seek guardianship with regard to a minor child who has received a substantial inheritance from their mother who is no longer married to their father. The guardianship would be limited to decisions pertaining to the property, while the father would retain all other decision-making authority.
- Plenary guardianships, where the guardian has the authority to make decisions over all of the ward’s affairs. For example, someone who is severely injured in a car accident and in a coma may require a plenary guardian to manage their affairs until they regain consciousness or die.
- Guardians of the person. This is a situation where the guardian acts like the ward’s parent. They are responsible for ensuring that their daily needs are met, such as food, clothing, shelter, and hygiene. It can also include medical and educational needs.
- Guardians of the property. This is where the guardian is responsible for managing the property of the ward, such as in the example we used for the limited guardianship. In general, the guardian has the authority to make financial decisions on behalf of the ward. In the example we used for voluntary guardianships, the daughter could serve as the guardian of her mother’s property.
If you are faced with the difficult decisions concerning the future care of yourself or a loved one, a guardianship attorney can help you find the best way forward.
Contact Ellis Law Group Today
Pursuing a guardianship is one of the most difficult decisions you can make. Ellis Law Group is here to help you make the right decision – contact us by calling 561-910-7500 to schedule a consultation.