Florida Guardianship Law: A Comprehensive Overview
Under Florida guardianship law, an adult person may be appointed by the court to make decisions for a minor or another adult who is found by the court to have impaired decision-making abilities.
Basics of Florida Guardianship Law
Guardianship cases are emotionally and mentally stressful for all the parties involved. With so many factors to consider, deciding to file for guardianship of another person in Florida carries with it a long list of possible ramifications.
If you’ve decided to pursue guardianship of a minor or an incapacitated adult in Florida, you want to work with an attorney who can be compassionate to the stress that you’re under while also providing the information you need and fighting for your case in court. Florida guardianship law is a relatively complex system, and the attorney that you choose can be the difference between having your petition for guardianship approved in court and losing your case.
The state of Florida has laws in place that mandate the need for court-appointed guardianship for a person who falls under certain categories. If an adult suffers from physical or mental disabilities that make it impossible to care for themselves, for instance, the court will name a guardian for them. In other circumstances, if a minor suffers the loss of both parents to either death or incapacitation, a family law judge will decide as to who will become the guardian of the minor if his or her parents did not make such provisions through estate planning measures, such as a will.
If you are in need of naming a guardian for an elderly or incapacitated loved one, or for yourself, contact Lehn Law, P.A. for a consultation. We are available now to assist you.
Florida Guardianship Statute
When a guardian is appointed by the court, he or she will act as the incapacitated person’s primary decision-maker, but their duties are limited to the rules and guidelines outlined in the court order as well as the standards detailed in the Florida guardianship statute.
Florida’s guardianship statute is covered under chapter 744 of Florida’s state statutes. This section of Florida’s family law system covers guardianship for minors who have lost their parents to death or incapacitation or disabled or elderly adults who do not have the capabilities to care for themselves.
It is important to note that there are cases where the court will name one person as the guardian of the individual while another person may be put in charge of the financial assets. An adult who is put in charge of only the financial assets the incapacitated individual has received is referred to as a “custodian.”
For more information on how these laws may impact your unique circumstances, please contact our attorneys for a free consultation.
Requisites for Guardianship in Florida Law
Some of the most commonly-asked questions concerning guardianship in Florida law revolve around the concept of who can be named the guardian of the minor or adult in question. Under Florida’s guardianship laws, any adult resident of Florida, related or unrelated to the person in question, is eligible to file a petition for guardianship.
Florida law also allows for individuals who perform the services of professional or public guardians, in addition to institutions such as nonprofit organizations, to assume guardianship of an individual. However, it is important to note that any adult who has been convicted of a felony or those who are ruled unable to perform the duties of a guardian are not eligible to be a court-appointed guardian in Florida.
Ultimately, the decision to appoint a guardian in Florida lies with the judge who is presiding over the case, so just because you meet these basic requirements doesn’t necessarily mean you will automatically be appointed as a guardian. However, hiring a skilled estate and elder law attorney can greatly improve your chances of successfully obtaining guardianship over your loved one. When you meet with the Sarasota guardianship attorneys at Lehn Law, P.A., we will inform you of your legal rights and options and help you begin building a strong case to present to the court.
How to Obtain Legal Guardianship of a Minor or an Incapacitated Adult
Understanding how to obtain legal guardianship of a minor or an incapacitated adult in the state of Florida requires at least a cursory understanding of Florida’s guardianship laws.
To begin the process of guardianship, the individual who is seeking the position has to file a petition with the local court where the person in question resides. This petition must be filled out and filed by an attorney who is licensed in the state of Florida. Once the petition has been filed with a local court, the court will appoint an attorney who is responsible for representing the minor or incapacitated adult.
It is important to note that multiple parties can petition for guardianship of the same person. As long as each petitioner follows the process for applying for guardianship in Florida, the court will consider each one of them.
Additional Info on Florida Minor Guardianship Law & Incapacitated Adult Guardianship Law
Once you have started the process of being named as the guardian of someone else in Florida, you may have other questions concerning the cost and time of the Florida guardianship law procedure.
Typically, filing fees for the petition range between $230 and $400, depending on the type of guardianship that is being filed for. It is important to note that this total does not include the legal fees which are determined by the attorney that you choose to represent you in your pursuit of guardianship.
The process of filing for and receiving guardianship of a minor or adult in Florida can often be completed in as little as 90 days. That timeframe is the average for uncontested cases, so if multiple petitioners are filing for guardianship of the same person or if the ruling on incapacity is contested, the process may take longer.
Florida Guardianship Law and Procedure for Determining Incapacity
While the above process applies to most types of guardianship cases, there are some additional intricacies to anticipate when facing a guardianship case for an incapacitated adult. While most minor guardianship petitions are initiated when a minor does not have a suitable adult caretaker, petitions for adults generally involve claims of incapacitation.
When an adult is declared incapacitated by the court, that means they are unable to make health care or financial decisions independently. The court does not use this label lightly, and adult guardianship cases tend to involve lengthy debates over the adult’s capacity to care for themselves.
Further, Florida law requires an examining committee consisting of medical and mental health professionals to examine the claim of incapacity. This committee thoroughly investigates whether the person in question does indeed need the court to appoint a guardian for them by determining their capacity to make sound decisions and/or manage their daily affairs. This is done through a physical examination, a mental health examination, and a functional assessment, in addition to a comprehensive evaluation of any supporting documentation, such as medical records.
The examining committee will then report their findings to the judge, who will have the final say on the matter. If the judge grants guardianship, he or she will accompany the ruling with a plan detailing the rights and responsibilities of the guardian or guardians.
Additional details on the procedures to determine incapacity can be found here. If you have any questions about this area of the law, please reach out to our attorneys for assistance.
Florida Legal Guardianship Forms Required to Appoint a Guardian
As is the case with any legal process, there are numerous forms that have to be filled out by any petitioner seeking to be named as guardian of an incapacitated person in the state of Florida. Failure to fill these forms out accurately and correctly can lead to significant delays in the guardianship hearing or the petitioner’s disqualification from consideration for guardianship by the court.
Florida’s legal guardianship forms include the following:
- Form 5.901 – Petition to Determine Incapacity
- Form 5.902 – Petition and Order of Guardian
- Forms A&B 5.903 – Letters of Guardianship (Form A covers guardianship of the person while Form B focuses on guardianship of the property)
- Forms C, D, and E 5.904 – Forms for Initial and Annual Guardianship Plans and Annual Guardianship Plans for the Person
- Forms A-C 5.905 – Petition, Notice, and Order for Appointment for Guardian of the Person
- Form 5.906 – Letters of Guardian Advocacy
- Form 5.910 – Inventory
While these forms are available online, the amount of intricate legal information that is required on each form introduces the need for you to seek the services of an attorney if you are pursuing guardianship in Florida. Making a single mistake on even one of these forms can lead to your petition for legal guardianship being delayed or even denied. Additionally, Florida courts will require an attorney to file these forms, which makes it an even smarter choice to have them filled out by a legal professional.
Choosing to pursue guardianship of an elderly or disabled loved one is no easy decision. However, in many circumstances, it can be an excellent option to improve their quality of life. If you are interested in becoming a guardian of a loved one and would like more information on the legal rights that a guardian may exercise, please reach out to Lehn Law, P.A. today.