Overview of Guardianship

What is Guardianship?

guardian A guardianship is a legal proceeding in the circuit court whereby a guardian is appointed to exercise some, or perhaps all, of the delegable rights of a person believed to lack capacity to manage their affairs.
The proceeding starts with a petition to determine a person’s incapacity that sets forth factual information upon which the petitioner bases their belief that the person is incapacitated. The petitions must be verified, or sworn to under the penalties of perjury that the facts contained therein are true to the petitioner’s knowledge and belief.
The court appoints an examining committee, made up of three members, whose job it is to examine the person and make recommendations to the court regarding capacity. During this time, the court appoints an attorney to represent the alleged incapacitated person and the person may substitute their own attorney to represent them in the proceedings.
Accompanying the petition to determine incapacity is the petition to appoint a guardian. This petition goes hand-in-hand with the petition to determine incapacity as a guardian is the person who will exercise the delegable rights that the person is incapable of exercising. This petition must be verified and establishes whether the guardian is seeking appointment of the person’s property i.e., their assets and/or the person i.e., healthcare decisions, right to determine residence, social environment, etc.
If the majority of the examining committee concludes that the person is not incapacitated in any respect, the judge is required to dismiss the petition. However, if the examining committee finds the person is incapable of exercise some rights, a hearing is scheduled to determine whether the person is partially or totally incapacitated. There are certain restrictions, but generally any Florida resident who need not be related to the person can serve as guardian. Certain relatives of the incapacitated person who do not live in Florida can also serve as guardian. The court gives consideration to the written preferences of the incapacitated person’s declaration of a pre-need guardian.
Requirements to becoming a guardian:
An oath and application.
A criminal background and credit history check.
Sometimes a bond. (an insurance policy that protects the assets under the guardian’s control)
Persons not considered for appointment:
Convictions for certain offenses: abuse/neglect of elderly persons.