Sometimes it becomes necessary for the court to appoint a guardian, or a surrogate decision-maker, to make either personal and/or financial decisions, for a minor or an adult with mental or physical disabilities. The person who needs guardianship is sometimes called a “ward.” Apfelbaum Law’s attorneys may be able to assist you with your guardianship matters. Apfelbaum Law guardianship attorneys have been assisting clients in Port St. Lucie, Stuart, and throughout the Treasure Coast and Florida.
Under Florida law, the court must appoint a guardian for minors in situations where the parents die or become incapacitated. A guardian is also appointed if a child receives an inheritance or proceeds of a lawsuit or insurance policy surpassing the amount allowed by statute. In situations where the parents have passed on or become incapacitated, a social worker will typically try to find a relative who is willing and able to care for the child. However, this is not always possible. In some cases, a foster parent may become the child’s guardian, at least temporarily.
Adult guardianship is a process where the court determines an individual’s ability to make decisions is so impaired that the court grants the right to make decisions to another person. With adults, guardianship is only warranted when none of the less restrictive alternatives—like durable power of attorney, trust, health care surrogate or proxy, or other pre-need directive—are available and determined by the court to be a good solution (the least restrictive form of guardianship available is usually considered to be the best option pursuant to relevant law).
Both voluntary and involuntary guardianships are permitted under Florida law. A voluntary guardianship may be created for an adult who, though mentally competent, is incapable of managing their own estate without assistance. Florida law also provides for limited and plenary (full) adult guardianship. A limited guardianship may be established if the court determines the ward lacks the capacity to do some, but not all, of the tasks necessary to care for their person or property. This option is available only if the individual does not have pre-planned, written instructions for all aspects of their life (most people don’t think about doing this unless they are suffering from serious health problems they expect to get worse.) A plenary guardian is a person appointed by the court to exercise legal rights and powers of the adult ward after the court finds the ward incapacitated. Wards in plenary guardianships are, by definition, determined to be unable to care for themselves.
Whether the ward is a minor or an adult who is incapacitated, when the court removes an individual’s rights to manage their own affairs there is an accompanying duty to protect the individual. This is why the court appoints a guardian. All adult and minor guardianships are subject to court oversight.
Chapter 744, Florida Statutes, contains the legal authority for guardianship in Florida. There are also court rules establishing the relationships among the court, the ward, the guardian, and the attorney, which are found in Part III, Probate Rules, Florida Rules of Court. Combined, these statutes and rules explain the duties and obligations of guardians and attorneys, plus the court, to ensure they act in the best interests of the ward, minor, or person who is alleged to be incapacitated.
Florida uses an examining committee to carefully consider the ability of the alleged incapacitated person (AIP). They will then report their findings to the court. During the adjudication hearing, the court may also hear testimony from anyone with information regarding the AIP’s capacity—this may include medical experts, family members, etc. The attorney for the AIP may offer other expert opinions or testimony in support of the AIP’s abilities. It’s important to know that no one can lose their civil rights unless a judge orders them removed. If the court finds the person doesn’t lack capacity—that they are capable of exercising their civil rights—then the guardianship process ends and the AIP continues to manage their own affairs. If the person’s incapacity is determined by the judge, the court will consider whether less restrictive decision-making options are in place, or if it’s necessary to appoint a guardian.
Another important thing to understand is that Florida law prohibits the removal of the following basic civil rights, even in cases of incapacitation:
- To Be Represented by an Attorney (Counsel)
- To Have Access to a Court
- To Receive a Proper Education (for minors)
- To Be Free from Abuse, Neglect and Exploitation
- To Remain as Independent as possible
- To Receive Necessary Services and Rehabilitation
- To Be Treated Humanely, with Dignity and Respect
Unfortunately, there are sometimes situations where guardians do not properly care for their wards and may take advantage of the situation for their own financial benefit, or they may abuse or neglect the ward. If you have concerns that this might be happening to you or someone you care about, speaking with a Florida guardianship attorney may help you better understand the options for handling this situation.
At Apfelbaum law, we assist our clients with the following areas of guardianship law:
- Plenary guardianship
- Limited guardianship
- Guardian advocate
- Disability guardianship
- Minor guardianship
- Guardian of the property
- Guardian ad litem
- Developmental disability guardianship
If you need assistance with your guardianship case, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida.