The term guardianship describes a legal relationship between the guardian and the ward. The term ward describes a person whom the court has declared legally incapacitated and has had some or all of his or her rights removed.
It is important to understand that guardianship should be a last resort and established only in cases where lesser restrictive means of intervention are not possible.
In order to ensure the guardian is acting in accordance with the law, Florida Statutes require guardians to submit reports to the court. These reports help the court to supervise the affairs of the ward and to monitor the action of the guardian.
A failure on the part of the guardian to comply with any requirement may result in the guardian having to appear before the court to explain his or her failure to properly fulfill his or her duties. This may result in sanctions against the guardian including removal as guardian or any other action the court may deem appropriate.
The duties and responsibilities included in this handbook may not include all of the duties and responsibilities required by your local court. It is important to check with your attorney to determine what, if any, additional duties your local court may require.
Guardianship is the process designed to protect and exercise the legal rights of individuals whose functional limitations prevent them from being able to make their own decisions and have not made plans for this time in their lives. People who need guardianship may have dementia, Alzheimer’s disease, a developmental disability, chronic illness or other such conditions that generally cause functional limitations. Before a guardianship is established, it must be determined that the alleged incapacitated person (AIP) lacks capacity. Guardianship should be the last resort.
Note: The guardianship program is often confused with the Guardian ad Litem program, which is a program designed to improve the lives of abused and neglected children.
The guardianship process is as follows:
The petitioner must be a competent adult who can attest as to why he or she believes the person may be incapacitated.
Once the Petition for Incapacity is filed with the court, the court, within five (5) days, will appoint an attorney to represent the AIP and an examining committee to conduct an evaluation. The examining committee will complete their evaluations and submit their reports back to the court within fifteen (15) days. The court will then set a hearing to be held within fourteen (14) days after receiving the reports from the examining committee. The reports filed by the examining committee should include a diagnosis, prognosis and a recommended course of treatment.
The three-member examining committee will consist of a licensed physician or a psychiatrist. The remaining members may be either another physician, psychologist, psychiatrist, gerontologist, registered nurse, nurse practitioner, licensed social worker or a lay person who, by knowledge, skill, experience, training or education, may advise the court in the form of an expert opinion.
There will be a filing fee to be paid by the petitioner at the time of the filing of the Petition for Incapacity. In addition, there will also be the cost of the court-appointed attorney to represent the AIP and the fees charged by the examining committee. If the ward has assets, these costs may be paid from these assets. If the ward is indigent, these costs may be borne by the state. There may be additional fees once the guardianship has been established. Those fees will depend on the nature of the guardianship.
Depending on the determination of the court and what will best serve the needs of the ward, the court may appoint a guardian of the person only, a guardian of property only or a guardian of the person and property.
The guardian of the person has the authority to exercise only the personal rights that have been removed from the ward by the court and delegated to the guardian.
The rights that may be removed from a person and delegated to a guardian include the right to contract, to apply for government benefits, to sue and defend lawsuits, to manage property or to gift or dispose of property, to determine his or her residence, to consent to medical or mental health treatment, and to make decisions concerning his or her social environment.
The guardian of the person has the responsibility of filing with the court the Initial Plan and the Annual Plans. These reports are covered in more detail under the section “Reports required by the Court.”
The guardian of the property has the authority to exercise only the rights that have been removed from the ward by the court and delegated to the guardian. However, the guardian of the property does not have the authority to sell, transfer, mortgage or donate any of the ward’s property without prior approval from the court. It will be up to the court to determine if any proposed transactions are appropriate for the ward.
Once letters of guardianship have been issued, property belonging to the ward (i.e., bank accounts, investment accounts, automobiles, homes, etc.) may need to be retitled or registered in the name of the guardianship, but not in the guardian’s name only. As an example, the bank account or deed may read as John Doe, guardian for Jane Smith. The guardian of the property must use caution and avoid mixing the ward’s funds with the guardian’s personal assets. It is also the guardian’s responsibility to provide the ward’s Social Security number to any bank or brokerage firm so that any earned interest will be properly reported to the Internal Revenue Service. The guardian of the property has the responsibility of filing with the court the Initial Inventory and Annual Accounting.
The guardian of the person and property has been given the responsibility by the court to make decisions regarding both the personal and property rights of the ward. It will be the responsibility of the guardian of the person and property to file with the court all the required initial and annual reports.
Florida Statutes require a guardian of the property to be appointed in cases where a minor receives a net settlement in excess of $15,000 as a result of a personal injury, property damage or wrongful death. The court, without adjudication of incapacity, may appoint a parent, sibling, next of kin or another person interested in the minor’s welfare as the guardian. The guardianship will terminate upon the minor reaching the age of majority even if the guardian believes the ward lacks the maturity to properly handle the assets for which the ward is entitled. Guardianship of a minor, which is a legal relationship between the guardian and the ward, should not be confused with custody of the minor.
Any competent adult who is a resident of Florida may serve as a guardian. A nonresident of Florida may serve as a guardian if he or she is directly related to the ward or the adopted child or adoptive parents of the ward. In certain cases the court may appoint a professional guardian to act as a guardian for the person and/or property, or a corporate guardian, such as a bank or brokerage firm to act as guardian of the property.
Florida Statutes prohibit the appointment of anyone as a guardian if they have been convicted of a felony, judicially determined to have committed abuse, abandonment or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses. In addition, a person who may be unable to perform his or her duties due to illness or incapacity may not be appointed.
The court may require a non-professional guardian to submit (at his or her own expense) to a background investigation, which may include a criminal and credit history check. If the court determines that a criminal and credit investigation is required, then the results of that investigation will be considered when the court appoints the guardian. For professional and public guardians, the court shall require that they, along with all employees who have a fiduciary responsibility to the ward, submit to a complete background investigation.
Once appointed as a guardian, whether as the guardian of the person or guardian of the property, Florida Statutes require the satisfactory completion of a training course within four (4) months of appointment. Both the guardian of the person and the guardian of the property are required to satisfactorily complete an eight (8) hour training and instruction course. A guardian of the property for a minor is only required to receive four (4) hours of training and instruction.
Contact your local clerk of court’s office or check with your attorney for a listing of training courses in your area.
Florida Probate Rules require that every guardian be represented by an attorney admitted to practice in Florida.
A guardian does not pay bills or debts from his or her own assets; however, the guardian of the property is responsible for continuing to pay the ward’s bills from the guardianship assets.
Guardians are required to file certain reports to the court that has jurisdiction over the guardianship. These reports help the court to supervise the affairs of the ward and to monitor the actions of the guardian. When a guardianship is established, certain rights are removed from the ward and designated to the guardian. In order to ensure that the guardian is completing his lawful duties and responsibilities, the guardian is required to follow certain statutory requirements regarding the filing of reports to the court. Failure to comply with any of the reporting requirements may result in the guardian having to appear before the court.
As the guardian of the person, you are required to submit to the court the Initial Guardianship Plan. The Initial Plan for the Ward must be based on the recommendations of the examining committee and must include provisions for medical, mental, personal care services and the type of residential setting best suited for welfare of the ward. This Initial Plan must be filed with the court within (60) days after the Letters of Guardianship have been issued.
As the guardian of the person, you are required to complete and submit to the court the Annual Plan. The Annual Plan must include the current location of the ward, the ward’s condition, the ward’s needs and whether there are any changes expected in the upcoming year. The Annual Plan must also include a report by the ward’s physician that should include an evaluation of the ward’s condition and a statement of the current level of capacity in addition to any rehabilitative services planned for the upcoming year.
As the guardian of the property, you are required to submit to the court an Initial Inventory within sixty (60) days after the court issues the Letters of Guardianship. The Initial Inventory must include a list of all the known assets and property belonging to the ward, the location of the assets and a list of any sources of income (i.e., Social Security, pension, rental income, etc.). The Initial Inventory becomes the basis for the Annual Accounting.
As the guardian of the property, you are required to file an Annual Accounting. Each year the Annual Accounting must include a complete and accurate account of any disbursements of the ward’s property made during the previous year. It shall also include a year-end statement of all the ward’s accounts from each financial institution where assets are being held. The guardian is required to preserve all receipts and proof of payment for a period of three (3) years after being discharged as the guardian.
In a guardianship of the property, where all the assets are maintained in a designated depository and the only transactions that occur in the account are interest accrual deposits pursuant to a settlement or financial institution service charges, the guardian of the property may file a Simplified Accounting. The Simplified Accounting must also include a year-end statement from the financial institution.
If property is discovered after the inventory is completed and submitted to the court, an amended inventory should be filed with the court.
The Clerk of Court is required by Florida Statutes to review most annual reports. Once the reports are audited by the Clerk of Court, they are forwarded to the court for review and approval.
A professional guardian is a guardian who has received at any time compensation for services provided to more than two wards.
Professional guardians are required to obtain a minimum of forty (40) hours of instruction and training within one (1) year of appointment. It is followed by a minimum of sixteen (16) hours of continuing education every two (2) calendar years. Professional guardians must also pass the Florida professional guardian competency exam. The Statewide Public Guardianship Office must approve any continuing education training courses.
A professional guardian is required to register with the Statewide Public Guardianship Office no later than thirty (30) days prior to his or her bond anniversary date. The required registration form and the required registration fee must be submitted along with a credit and criminal report, proof of having completed the required forty (40) hour professional guardianship course, proof of a $50,000 blanket bond and proof of completion of sixteen (16) hours of continuing education requirements every two (2) years since becoming a professional guardian.
A professional guardian is entitled to reasonable fees for services and costs incurred while providing services on behalf of the ward. Prior to any fees being paid to a professional guardian from the assets of the ward, the court will review the petition and consider the amount of time involved and the labor required to provide the services. The professional guardian must provide to the court an itemized description of the services performed for any fees they seek.
Florida Statutes require a professional guardian to post a blanket fiduciary bond with the Clerk of Court within the local judicial circuit. The bond must be maintained by the professional guardian in an amount of at least $50,000 and must cover all wards that the guardian has been appointed to represent.
A professional guardian and employees of a professional guardian who have a fiduciary responsibility to a ward are required by Florida Statutes to submit to a credit and criminal history at least every two (2) years. In addition, each professional guardian must register with the Statewide Public Guardianship Office annually. The annual registration requires all professional guardians to provide the Statewide Public Guardianship Office a completed registration form, applicable fees, documentation that the bonding and educational requirements have been met, and that a criminal and credit background investigation has been completed. The registration must be completed on standard forms provided by the Statewide Public Guardianship Office and may be obtained from the Department of Elder Affairs Web site or by calling the Statewide Public Guardianship Office.
For a complete list of professional guardianship courses you may contact the Statewide Public Guardianship Office at (850) 414-2381 or check the online calendar on the SPGO Web page at: http://elderaffairs.state.fl.us.
In Florida, the Statewide Public Guardianship Office designates Offices of Public Guardian. A public guardian acts as guardian for incapacitated persons who lack a willing and qualified family member or friend to serve as their guardian and who do not have adequate income or assets for the compensation of a private guardian.
The role of the public guardian is to primarily serve the incapacitated, who are of limited financial means, and is vested with all the powers and duties as any other guardian.
At the present time, public guardianship exists in numerous counties throughout the state of Florida with some of the offices providing service to more than one county. A current list of local offices may be found on the Statewide Public Guardianship Office Web page at: http://elderaffairs.state.fl.us.
If you have further questions about public guardianship or would like information on how to become a professional guardian, you may contact the Statewide Public Guardianship Office at (850) 414-2000, write to Statewide Public Guardianship Office at 4040 Esplanade Way, Tallahassee, FL 32399-7000, or visit our Web site at http://elderaffairs.state.fl.us. For questions related to family guardianship, please contact your local probate court.