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Two Types of Guardianship Florida Family Lawyers Can Help With

David Scott, P.A. Aug. 21, 2022

Families come in all shapes in sizes. The people in charge of looking after children – and in some cases adults – are not always the person’s birth parents. Many situations may lead to parents or other authorities putting another individual in charge as someone’s “guardian.”

What exactly is a guardian under Florida law? The definition depends on the type of person who needs a guardian.

There are two types of guardianship roles that Florida family lawyers may be able to offer guidance on: guardians for minor children and for incapacitated adults. For minors, a guardian is someone given responsibilities similar to those of parents at birth or adoption over that minor. Guardians of incapacitated adults can take on a wide variety of responsibilities depending on the specific needs of the adult in question. We’ll go into more detail on the roles of both types of guardians below.

Family lawyers are here to make sure that all legal processes, including guardianship appointments, are smooth and fair for all parties.

What Do Florida Guardians Do – and Who Are They?

Before we go into more depth on the two types of guardianship handled by family lawyers, let’s briefly describe the roles of a guardian in Florida. Guardians are responsible for:

  • Make personal or financial decisions for the person they are responsible for (called a “ward”)

  • Care for the ward and their property (if they cannot do these roles for themselves)

Guardians can be individual people or an institution like a bank trust or nonprofit organization). Florida prefers that guardianships allow the ward as much freedom as possible. In cases where the ward cannot take care of themselves or their property, however, a guardian must be put into place.

Becoming a Guardian for Minor Children in Florida

In Florida, parents are automatically given the role of guardian for their children. However, if you are the father of a child but don’t have parental rights, you might need to establish paternity first.

If parents die or lose the ability to be able to perform their roles as a guardian, the state will need to appoint a new guardian. Guardians can also be appointed solely over a child’s property if the child has been given an inheritance or assets from a lawsuit with property over $15,000. The guardianship will be in place until the ward turns 18, provided they then have the mental and physical capabilities to take over these responsibilities.

A guardian can be chosen preemptively. For example, parents can name a guardian in their will. Guardians named preemptively are the default choice of Florida courts, provided they qualify for guardianship and are capable of carrying out the appropriate responsibilities. Surviving parents may also appoint a guardian if they want to relinquish guardianship during their lifetime.

Becoming a Guardian for an Incapacitated Adult in Florida

An adult is considered “incapacitated” if they do not have the mental or physical capabilities to manage their property or personal health and safety. An adult may be deemed incapacitated after the diagnosis of dementia, if they are comatose, and in other situations.

A legal team of physicians and experts are appointed by the court in order to determine a person’s capacity to care for themselves. Before the guardianship process starts, a petition to determine incapacity must be filed. Lawyers are often recruited to help the petitioner at this time. Once the adult is deemed incapacitated, the petition to appoint a guardian can be filed.

Adult guardianship is a last resort in the eyes of Florida law. Before appointing a guardian, the courts may look for solutions including:

  • Durable power of attorney

  • Trust

  • Health care surrogate

  • Pre-need directives

If none of these initiatives are appropriate or allow the adult to manage their own decisions, a guardian may be put in place.

The Process of Appointing a Guardian in Florida

In order for a guardian to be appointed for a minor child or incapacitated adult, the prospective guardian must file:

  • Petition to Appoint a Guardian

  • Application for Appointment as a Guardian

Not just any person can fill out these petitions. The prospective guardian must be an adult who is also a Florida resident. However, non-residents may apply if they meet any of the following qualifications:

  • Direct familial relation to the ward (child, spouse, brother, sister, uncle, aunt, niece, nephew)

  • Legally adopted child/parent of the ward

  • Spouse of the ward

Convicted felons cannot apply to be a guardian.

Once the applications are filed, the guardian will have to complete background checks and courses to determine their eligibility. Guardianship will not be granted until the court has proof of all of these completed requirements.

In court, a judge will examine the guardianship petitions and the eligibility of the guardian. Florida appoints all guardians to minors based on the best interest of the child. Guardians are appointed to incapacitated adults only when all other options for health and financial management have been exhausted.

Fees Related to Florida Guardianship

Fees come with each step of the guardianship process. Unfortunately, a guardianship can end up costing the guardian thousands of dollars. Additionally, annual guardianship fees may also apply.

If you are looking to apply to be a guardian, consider these costs when you are choosing a Florida family lawyer, since attorneys come with fees as well. Thankfully, low-cost lawyers do exist in the state of Florida.