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What is Guardianship? 


A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person. A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person (referred to as a Ward).



Any interested adult may file a petition requesting that a circuit judge determine the incapacity of another person. This petition should be filed in the county where the alleged incapacitated person resides or is found. The circuit judge will appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician and the other two remaining members must be a psychologist, another psychiatrist, or another physician, a registered nurse, nurse practitioner, licensed social worker or other people who by knowledge, skill, experience, training or education may advise the court in the form of an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition. The circuit judge must also appoint an attorney to represent the person alleged to be incapacitated.

The examining committee will examine the person alleged to be incapacitated and each member will submit a written report to the Court. If the examining committee decides that the person is not incapacitated in any respect, the circuit judge must dismiss the petition for incapacity. If the examining committee decides that the person is incapacitated in any respect (personal or property decisions), a hearing will be held in a circuit court. The person alleged to be incapacitated must be present at the hearing, unless their appearance is waived by the alleged incapacitated person or his or her attorney or unless good cause can be shown for the alleged incapacitated person’s absence.

“Most of our alleged incapacitated people really do need help and they just aren’t sure how to do it.


We create a system for that help.”

An Overview Of Guardianship and Guardian Advocacy | Shannon Miller | The Miller Elder Law Firm

A person may be determined to be incapacitated by a court of law when he or she lacks the ability to manage at least some of his or her property or to attend to at least some of his or her essential health and safety requirements. A person is considered unable to manage his or her property if he or she cannot take the necessary actions to obtain, administer, and dispose of his or her real and personal property. A person is considered unable to meet the essential requirements for health or safety if he or she cannot take the necessary actions to provide health care, food, shelter, clothing, personal hygiene, or other care without which serious and immediate physical injury or illness is likely to occur.

The alleged incapacitated person’s incapacity must be established in court by clear and convincing evidence. After hearing all the evidence, the circuit judge may still dismiss the petition if there is insufficient evidence to support a finding of incapacity. However, a circuit judge may determine a person to be totally incapacitated if he or she is incapable of exercising all his or her non-delegable and delegable rights. Non-delegable rights include the right to marry, vote, personally apply for government benefits, have a driver’s license, travel, or seek and retain employment. Delegable rights are the right to contract, sue and defend lawsuits, apply for government benefits, determine residency, consent to medical and mental health treatment, manage property, make gifts of property, or decide social environment or other social aspects of life. If an individual is incapacitated in any of these areas, the judge will remove his rights in those specific areas and will then assign the incapacitated person’s delegable rights to a guardian appointed by the judge.

A competent adult may designate in advance (through the execution of a Designation of Pre-Need Guardian) the person he wants to serve as his guardian in the event he is ever determined to be incapacitated. The written declaration must reasonably identify the preneed guardian and be signed in the presence of at least two attesting witnesses. A person may file his or her declaration with the clerk of the court (there is a fee charged by the clerk of the court for this filing). If a petition for incapacity is subsequently filed, the clerk of the court must produce this declaration to the circuit judge. Such a declaration in an incapacity proceeding constitutes a rebuttable presumption that the preneed guardian should serve as the guardian. However, the circuit judge is not be bound to appoint the preneed guardian if this named person is determined by the circuit judge to be unqualified to serve as the guardian.

At the hearing, the court will appoint a qualified individual to serve as Guardian. This person may be a family member or a professional Guardian. The Guardian will be required to file Annual Plans and Accountings (Reports) with the court each year and to attend a Guardian education course.

Guardianships can be costly and time-consuming. The incapacity and guardianship process should be discussed at length, with an Elder Law attorney, prior to the filing of an incapacity petition with the Court.

“If you see those people that are being exploited or you have a feeling that they are, you really need to get the government involved – whether that’s a call to the elder abuse hotline or whether it’s contacting an attorney.”

Vital Living Forum | Guardianship

Minor Guardianships

In Florida, children under eighteen (18) years old are considered to be incapacitated due to minority. Therefore, they cannot settle their own lawsuits, or manage their own funds. In cases where a minor will receive assets in excess of $15,000.00, a guardianship of the property for a minor child must be established through the Court. These are often created in the context of a personal injury settlement. An Elder Law attorney can often file the paperwork needed to have the minor’s parent (or other individual) appointed Guardian over the property of the minor. These funds will be released to the minor at a later date, often when the minor reaches age eighteen (18).


Designation of Pre-Need Guardian Form


Download the Declaration Pre-Need Guardian Form.

Allow our experience in the field to work on your behalf. Contact The Miller Elder Law Firm today for an initial consultation at (352) 379-1900 or fill out our convenient contact form.

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