Adult Guardianship In Florida

In theory it makes sense. When old age catches up to someone and renders them incapable of making essential decisions regarding their finances, self-care, or both, a court can appoint a guardian to make those decisions for them. However, adult guardianship in Florida often has unintended – and sometimes devastating – consequences.

In this article we will provide a general overview of adult guardianship in Florida and discuss some of its pitfalls.

What is guardianship?

The Florida State Guardianship Association defines guardianship as a legal method for the delegation of one person’s rights to someone else who then acts on their behalf. It is designed to protect people incapable of:

• Making decisions
• Articulating or otherwise conveying any decisions they have made or want to make
• Acting in their own best interest

Accordingly, a Florida court will appoint a guardian for an adult who is incapable of taking any of those actions due to circumstances such as:

• Old age
• Traumatic brain injury (TBI)
• A condition that substantially limits the person’s development or intellectual capacity
• Substance abuse or mental health issues

Ideally, the guardian will be a family member  appointed by the court or named as a guardian in a written declaration by the person who is allegedly incapacitated before any finding of incapacitation. Guardianship is not limited to relatives though. Under Florida law, any adult resident of the state can serve as a guardian regardless of whether they are related to the person who is allegedly incapacitated. Having said that, some relatives of the ward who do not live here also may serve as guardian. Furthermore, professional or public guardians may also be appointed in certain circumstances.

Something else to keep in mind is that there are different types of guardianship, A guardian of the property is tasked with inventorying the property, investing  it wisely, and using it for the ward’s support. A guardian of the property is also responsible for  accounting for it. This is done  by filing comprehensive annual reports with the court. Finally, this type of guardian has to  get court approval for certain financial transactions.

A guardian of the person is tasked with certain responsibilities like  providing medical, mental, and personal care services, and choosing where the ward lives. He or she must also present an annual report to the court detailing the ward’s care, in addition to a doctor’s report.

A limited guardian is appointed when a court deems that someone is partially incapacitated. He or she is simply tasked with carrying out the rights the ward is incapable of exercising.

However, it is important to note that the court will only appoint a guardian as a last resort. Specifically, the court will appoint a guardian in absence of a suitable alternative. Acceptable options include a durable power of attorney, trust, health care surrogate or proxy, or similar “pre-need directive.”

Determination of incapacity and guardianship in Florida

In Florida, any adult can ask the court to decide whether someone is legally incapacitated for the purposes of appointing a guardian. This is done by filing a petition, called the “Petition to determine incapacity” with the court.  It must explain in detail why the person who filed the petition believes the person in question is incapacitated.

Once it gets the petition, the court has five days in which to appoint a so-called “examining committee.” This committee must have three members including a psychiatrist or another doctor. Each of the other members must have relevant expertise as either a: psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, or someone with an advanced degree in gerontology. One member  must know about the type of incapacity alleged in the petition, and each committee member  must submit a report detailing their conclusions to the court.

In addition to appointing the committee, the court will appoint an attorney for the subject of the petition. You should be aware, however, that the person who is allegedly incapacitated can be represented by his or her personal attorney instead.

You should also be aware that the assessment of the person who is allegedly incapacitated usually includes a physical evaluation, a mental health evaluation and a functional evaluation.

The court will dismiss the petition If most of the examining committee members find that the person who is allegedly incapacitated is not incapacitated in any way. Conversely, if the examining committee determines the subject of the petition cannot exercise certain rights, the court  will schedule a hearing  to determine if he or she  is totally or partially incapacitated. If he or she is deemed incapacitated in any way, the court will appoint a guardian is appointed at the end of the incapacity hearing.  Depending on the circumstances, the court may simply appoint a guardian of the person, or  a guardian of property. In some cases, the court may appoint both.

The only exception to this, as we noted earlier, is if the court finds a suitable alternative to adult guardianship is available.

Pitfalls of adult guardianship in Florida

Florida law attempts to protect people in need of guardianship in several ways. First, it bars the appointment of convicted felons – or anyone who is otherwise incapable of carrying out required duties – as guardians. Next, guardians in Florida must be represented by attorneys to serve as “attorneys of record.” In most cases, they must also furnish a bond, and may be required to complete a court-approved training program.

The clerk of the court is charged with reviewing  all annual reports of guardians of the person and property, and presenting them to the court for approval. The court can remove any guardian who fails to carry out their duties as required.

Even so, critics say the system is flawed. And some of them speak from personal experience. In one well-publicized case, for example, two sisters who filed for emergency temporary guardianship (“ETG”) for their elderly father ended up in a protracted legal battle to have it removed.

In this case, the sisters are both medical doctors. They also held power of attorney for their father. Nevertheless, a judge denied their request to be appointed his guardians. Instead, the judge appointed a professional guardian. This meant a complete stranger was allowed to manage their father’s money and medical care.

This reportedly led to a series of legal disputes as the sisters objected to the way their father’s money was being spent, a move to an assisted living facility and the sale of his house. Instead of siding with them, however, a judge reportedly approved everything. To add insult to injury, the judge also extended the ETG for three months when it was set to expire. In fact, published reports indicate there were three extensions before a judge “decided to make the ‘emergency’ guardian the permanent, or plenary guardian.”

In the end, the sisters had to claim the rights to their father’s house and name the judge as the defendant, thereby forcing her to recuse herself from the case. The guardian also resigned,  and another judge stepped in and appointed the sisters as guardians after reviewing the case.

A blow to guardianship reform efforts here happened earlier this year, when House Bill 297 was withdrawn from consideration before it came to a vote during the legislative session. As proposed, the bill called for the establishment of “ the visitation rights of the family of the person alleged to be incapacitated” with “presumption in favor of allowing visitation or other contact with the family.” Among other things, the bill would have also “required ‘full reevaluation of need for guardianship after a certain time’”

Despite the setback, the Florida AARP, which reportedly made guardianship reform a “top priority” during the recent legislative session, plans on continuing to teach its members about alternatives to guardianship.

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Meanwhile, if you have questions or concerns about adult guardianship in Florida, don’t hesitate to contact Attorney John Frazier for legal advice. You can reach him at 727-260-2581, or at 813-431-3193 after 5 p.m.