Caring for Those Who Can No Longer Care For Themselves
Do I need a lawyer?
Yes, Florida law requires that a guardian must be represented by an attorney who will serve as “attorney of record.”
In some circumstances, it is necessary to have a personal advocate in place to make decisions when someone no longer has the capacity to make sound decisions on their own. A guardian is a surrogate decision-maker appointed by the court to make decisions for an individual. For some, that person is a family member or trusted friend. For others, this is a court appointed professional or public guardian.
Florida has very specific laws governing guardianship proceedings and guardian activities, all of which are designed to protect the interests of the ward. A Florida guardian is accountable to the Court. The guardians must file initial and annual reports on the status of the ward and account for all financial activity. Guardianships are controlled by Chapter 744 of the Florida Statute.
Types of Guardianship
Limited guardianship is appropriate if the court finds the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property; and if the individual does not have pre-planned, written instructions for all aspects of his or her life.
Plenary guardianship is when a person is appointed by the court to exercise all delegable legal rights and powers of the adult ward after the court makes a finding of incapacity. Wards in plenary guardianships are, by definition, unable to care for themselves.
Guardian Advocacy is a process for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf if the person lacks the decision-making ability to do some, but not all, of the decision-making tasks.
FAQs About Guardianship
What is Florida Guardianship?
Guardianship, referred to in some states as conservatorship, is a legal process, utilized to protect and care for a person who can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence.
What is a Florida Guardian?
A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. After adjudication, the subject of the guardianship is termed a “ward.”
Can’t my Family Just Help Out?
Many people are under the mistaken impression that their spouse or adult children can automatically take over for them at that time. However, unless a less restrictive alternative such as a Durable Power of Attorney, Healthcare Surrogate/Living Will, and PreNeed Naming of Guardian have been executed by your loved one while they still had capacity, no one is legally authorized to step into that role automatically. Thus, in order for others to be able to manage your loved one’s finances and/or personal affairs, they must first petition the Court to declare your loved one legally incompetent and appoint a guardian.