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Guardianship

A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. Guardianship is the legal process designed to protect and exercise the legal rights of individuals whose functional limitations prevent them from being able to make their own decisions and have either not completed incapacity planning or the plan is no longer a workable option.

 

Guardianship should always be the last resort.

 

Florida law provides for limited as well as plenary adult guardianship. A limited guardianship is appropriate if the court finds the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property; and if the individual does not have pre-planned, written instructions for all aspects of his or her life. A plenary guardian is a person appointed by the court to exercise all delegable legal rights and powers of the adult ward after the court makes a finding of incapacity. Wards in plenary guardianships are, by definition, unable to care for themselves.

Florida law requires the court to appoint a guardian for minors in circumstances where the parents die or become incapacitated, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount allowed by statute (presently, $15,000.00). The court, without the need to determine incapacity, may appoint a parent, sibling, next of kin or another person interested in the minor’s welfare as the guardian. The guardianship will terminate upon the minor reaching the age of majority even if the guardian believes the ward lacks the maturity to properly handle the assets for which the ward is entitled. Guardianship of a minor, which is a legal relationship between the guardian and the ward, is not the same thing as having custody of the minor.

Only certain individuals can serve as Guardians. Either direct family members, residents of Florida, or a professional guardian can be appointed. However they cannot have been convicted of a felony, judicially determined to have committed abuse, abandonment or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses.  

To learn how to avoid the need for guardianship, or how it could help a loved one-