Family

The law requires that all guardians or people seeking to become the guardian be represented by an attorney. Fla. Prob. R. 5.030(a).

If you cannot afford an attorney, please contact the Dade County Bar Association Legal Aid at 305-579-5733 or Legal Services of Greater Miami, Inc. at 305-576-0080.

An adult guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of an incapacitated adult. During the legal proceeding, the court finds an individual's ability to make decisions so impaired that the court removes all or some of the individual’s rights and gives the right to make decisions to another person, the guardian.

A minor guardianship is a legal proceeding in which a guardian is appointed on behalf of a minor child. In some instances, the guardian exercise parental rights over a minor child when the minor’s natural parents have died. In other instances, the guardian is appointed to safeguard proceeds of a lawsuit, inheritance or insurance policy exceeding $15,000.00 on behalf of the minor.

A guardian is a surrogate decision-maker appointed by the court in a guardianship case to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities.

The person who is the subject of the guardianship case is called a “Ward.” In adult guardianships, the person who is deemed incapacitated is called a “Ward.” In minor guardianships, the minor child is called a “Ward.”

An incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements of the person.

Before the court can appoint a guardian of an adult, the court must hold a hearing to determine whether the adult is incapacitated.

To obtain a hearing to determine whether the adult is incapacitated, the proposed guardian or other adult must ask his or her attorney to open a mental health legal proceeding, obtain a mental health case number and file a Petition to Determine Incapacity.

Any adult may file a petition with the court to determine another person’s incapacity, setting forth the facts upon which they base their belief that the person is incapacitated.

The court then appoints a committee of three members, usually two physicians and another person, who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.

The examination of the incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.

The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated.

If a person is found to be incapacitated in any respect, the court recommends that a guardian be appointed. If the court finds the ward partially incapacitated, it will appoint a limited guardian to perform only those rights that the Ward is incapable of exercising.

Once the court issues the order finding the Ward incapacitated, the proposed guardian or other adult must ask his or her attorney to open a guardianship legal proceeding, obtain a guardianship case number and file a Petition to Appoint a Guardian. The guardianship legal proceeding has a different case file than the mental health proceeding in which the Ward was found to be incapacitated.

Any adult resident of Florida, related or unrelated to the potential Ward, can serve as a guardian. Certain relatives of the Ward who do not live in Florida also may serve as guardian. However, people who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Individuals who are professional or public guardians can serve as guardian. Additionally, an institution such as a nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the property.

The court may not appoint a guardian in some circumstances in which a conflict of interest may occur.

A guardian of the person makes decisions regarding the Ward’s well-being including but not limited to medical decisions, living arrangements and travel plans.

A guardian of the property is responsible for the Ward’s property, including but not limited to financial assets, real and personal property, and makes decisions regarding the Ward’s property.

A guardian of the person and property makes all decisions on behalf of the Ward, including decisions pertaining to the Ward’s well-being and decisions associated with maintaining the Ward’s real and personal property.

The law requires that all guardians must be represented by an attorney. Fla. Prob. R. 5.030(a).

If you cannot afford an attorney, please contact the Dade County Bar Association Legal Aid at 305-579-5733 or Legal Services of Greater Miami, Inc. at 305-576-0080.

Once the court issues the order finding the Ward incapacitated, the proposed guardian or other adult must ask his or her attorney to open a guardianship legal proceeding, obtain a guardianship case number and file a Petition to Appoint Guardian. The guardianship legal proceeding has a different case file than the mental health proceeding in which the Ward was found to be incapacitated.

Provide your attorney with the following documents:

• A completed Application for Appointment of Guardian (Get the application here.)
• If you are seeking to be the guardian for a minor, the original birth certificate of the Ward.

Submit your Florida Department of Law Enforcement (“FDLE”) search results to the Miami-Dade Clerk of Courts. To do this, go to a fingerprinting agency to submit your fingerprints. Provide the fingerprinting agency with the Miami-Dade Clerk of Courts Originating Agency Identification (“ORI”) Number, FL013124Z. After providing this ORI number to the agency, the FDLE’s background search records will be submitted to the court.

A guardian who is given authority over property of the Ward is required to inventory the property, invest it prudently, use it for the Ward’s support and account for it by filing detailed annual accountings with the court. In addition, the guardian must obtain court approval for certain financial transactions.

Specifically, under Florida law, the annual accountings must be filed with the court by April 1st. The accounting due April 1, 2018 covers the period from January 1 through December 31, 2017.

The simplified annual accounting form is available here and the regular accounting form is available here.

The guardian of the Ward’s person may exercise those rights that have been removed from the Ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the Ward. The guardian of the person must also present to the court a detailed annual plan for the Ward’s care along with a physician’s report.

Specifically, under Florida law, the annual plan must be filed with the court by April 1st. The report due April 1, 2018 covers the period from January 1 through December 31, 2018.

The annual plan form is available here.

The clerk of the court reviews all annual accountings and annual plans filed by guardians and presents them to the court for approval. Guardians who do not properly carry out their responsibilities may be removed by the court.

Hire an attorney. The law requires that all guardians must be represented by an attorney. Fla. Prob. R. 5.030(a). If you cannot afford an attorney, please contact the Dade County Bar Association Legal Aid at 305-579-5733 or Legal Services of Greater Miami, Inc. at 305-576-0080.

To close the guardianship case and discharge your responsibilities as guardian, you will need to provide your attorney with the Ward’s original death certificate. If you are the guardian of the property, you will need to also assist your attorney with preparing a Final Accounting and provide your attorney with a proof of receipt of assets by the Personal Representative of the Ward’s estate or the next of kin of the Ward.

Hire an attorney. The law requires that all guardians must be represented by an attorney. Fla. Prob. R. 5.030(a). If you cannot afford an attorney, please contact the Miami-Dade County Bar Association Legal Aid at 305-579-5733 or Legal Services of Greater Miami, Inc. at 305-576-0080.

To close the guardianship case, discharge your responsibilities as guardian and distribute the guardianship funds to the Ward, you will need to assist your attorney with preparing a Final Accounting and provide your attorney with a consent to discharge and consent to distribution. Once the Ward receives the guardianship assets, you will need to provide your attorney with the Ward’s receipt of assets.

Hire an attorney. The law requires that all guardians must be represented by an attorney. Fla. Prob. R. 5.030(a). If you cannot afford an attorney, please contact the Miami-Dade County Bar Association Legal Aid at 305-579-5733 or Legal Services of Greater Miami, Inc. at 305-576-0080.

You will need to direct your attorney to file a Suggestion of Capacity and Petition for Restoration of Capacity and set the petition for hearing.