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 guardians
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 Securit