Understanding Guardianship in Florida: When a Court May Appoint Someone to Make Decisions for a Loved One

Under Florida law, there are certain circumstances in which the appointment of a guardian is deemed necessary for protecting the interests of someone who is unable to protect their interests on their own. If you have questions about seeking guardianship for a loved one—or if you have questions about someone else’s efforts to seek guardianship—it will be important to ensure that you have a clear understanding of how the law applies under the specific circumstances at hand.

Florida’s guardianship laws are complex, and they seek to strike a careful balance between protecting the best interests of the person for whom guardianship is sought (the “ward”) and preserving individuals’ autonomy for as long as possible. As a result, informed decision-making is key for everyone involved. With this in mind, here is an overview of some important considerations regarding the appointment of a guardian to make decisions for a loved one:

4 Circumstances in Which a Guardian May Be Appointed in Florida

There are four primary circumstances in which a guardian may be appointed under Florida law. Two of these circumstances involve minors, and two of them involve adults:

1. Death or Incapacity of a Minor Child’s Parent

The first circumstance involves the death or incapacity of a minor child’s parent. If a child’s parents are unavailable or unable to make decisions on the child’s behalf, a guardian will need to be appointed to manage the child’s affairs and protect the child’s welfare until his or her 18th birthday.

In this scenario, parents can appoint a guardian prior to their death or incapacity with advance planning. Alternatively, if no plan is in place, a family member or any other concerned individual can seek to have a guardian appointed through the Florida courts.

2. A Minor Child Acquires More Than $15,000

The second circumstance involves a minor child acquiring more than $15,000. In this situation, Florida law requires that a guardian be appointed to manage the child’s funds with his or her best interests in mind. While it is possible for a parent to be appointed as the child’s guardian in this scenario, other family members or concerned individuals can also seek the appointment of a third-party guardian if necessary.

3. Voluntary Guardianship for Adults

The third circumstance involves voluntary guardianship for adults. Adults who have concerns about their ability to manage their affairs or make sound decisions in the future have the ability to seek to have a guardian appointed prospectively. In this scenario, the adult selects his or her own guardian (who will frequently be an adult child or another trusted family member), and the adult generally has the ability to terminate the guardianship at any time.

4. Involuntary Guardianship for Adults

The final circumstance involves the involuntary appointment of a guardian for an adult who is unable to protect his or her own best interests. This could be due to a catastrophic injury or a cognitive condition such as a severe intellectual disability or dementia. In this scenario, the process of having a guardian appointed is significantly more involved, as the court’s initial focus will be on ensuring that the appointment of a guardian is truly necessary under the circumstances at hand.

The Process of Having a Guardian Appointed in Florida

The procedures involved in having a guardian appointed in Florida depend on the nature of the guardianship sought. For example, while seeking to have a child’s parent appointed as a guardian to manage a $15,000 savings account can be relatively straightforward, seeking involuntary appointment of a guardian for an aging adult is a multi-step process that requires careful planning.

In this latter situation, for example, a key step in the process involves establishing that the adult is “incapacitated,” as that term is defined under Florida law. This begins with filing a Petition to Determine Incapacity in the appropriate Florida court. Once a valid petition has been filed, the court will appoint an “examining committee” consisting of three members, at least one of which must be a psychiatrist or another qualified physician. The other members must be either, “a psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or any other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion.”

The court will also appoint an attorney to represent the adult for whom involuntary guardianship is sought. If the examining committee determines that the adult is either partially or totally incapacitated, the court will then proceed with the process of appointing a guardian in the adult’s best interests—provided that the appointment of a guardian is the “least restrictive appropriate alternative.”

Alternatives to Guardianship Under Florida Law

In nearly all cases, when considering guardianship, it is also important to consider any alternatives that may be available. While appointing a guardian will be necessary in some cases, there are also less-restrictive options that are well-suited to varying circumstances. These include (but are not limited to) alternatives such as:

• Powers of attorney
• Healthcare surrogates and proxies
• Healthcare case management
• Revocable trusts and other estate planning tools
• Supported decision-making arrangements

As we said above, when considering guardianship, informed decision-making is key for everyone involved. If you need to ensure that you are making informed decisions, we strongly recommend consulting with an experienced Florida guardianship attorney.

Schedule a Confidential Consultation with a Florida Guardianship Attorney at Douglas Law Firm

Our Florida guardianship attorneys have extensive experience advising family members and other concerned individuals during all aspects of the process. If you would like more information about guardianship or the alternatives that are available in Florida, we invite you to get in touch. Call 800-705-5457 or tell us how we can contact you online to schedule a confidential consultation.