Guardianships: The Need to Know Basics
According to the Florida Courts’ website, a guardianship is formed when a court appoints a surrogate decision-maker who is in charge of making personal and/or financial decisions for their ward (a ward can be either a minor whose parents are unable to care for them or an adult with a mental impairment who is unable to care for himself). All minor and adult guardianships are subject to court oversight, but in most situations the guardian has a great deal of discretion so long as their decisions are inline with the best interests of their ward. A brief overview of these two types of guardianships according to Florida law is provided below, however anyone with case specific questions should contact a local family law attorney.
Parents generally have the legal right to make decisions on behalf of their minor children (i.e. children who are less than 18 years old), however if there is no parent available to care for a child then the state will appoint a guardian who will be charged with making decisions for the minor. A parent can be deemed legally “unavailable” if they are physically absent or if their parental rights have been terminated for some reason.
Adult guardianships in Florida are classified as either “general” or “special”. A general adult guardianship (also known as a plenary guardianship) is appointed when an individual is rendered mentally incompetent and unable to care for himself due to a mental impairment, deficiency, or disease. However, if the impaired adult is capable of competently making some but not all of their own decisions then the court will establish a special adult guardianship (also referred to as a limited guardianship). Florida law favors special guardianships over general guardianships, where appropriate, as courts in our state are instructed to establish the least restrictive form of guardianship wherever possible. In fact, if the court finds that there is a less restrictive alternative to instituting a guardianship in the first place (for example, a trust, health care proxy, durable power of attorney, etc.) then the court will often opt for that less restrictive approach over establishing a guardianship.
Who Can and Cannot Serve as a Guardian in Florida?
Under Florida Statute section 744.309(2) a guardian in our state can be any Florida resident who is 18 years old or older and who is of sound mind. Additionally, a non-resident may be appointed a guardian in Florida if he or she is related to the ward by blood, law, or adoption. Legal entities, such as a trust, bank, or religious or charitable non-profit corporation, can also be appointed as guardians under some circumstances (Florida Statutes sections 744.309(4) and 744.309(5)).
Under Florida law there are also some individuals who are prohibited from serving as a guardian based on their relationship to a proposed ward. For example, Florida Statute section 744.309 lists several people who are prohibited from serving as a guardian in Florida (unless the court finds that there is no conflict of interest and that appointing such a guardian would be in the best interest of the ward given the circumstances), including the following:
- Someone who provides the ward with substantial professional services,
- A creditor of the ward,
- A health care provider who furnishes the ward with either direct or indirect care,
- Someone who has been convicted of a felony,
- An individual who has an incapacity or illness that renders them unable to carry out the duties of a guardian, or
- A person who has been found by a court of law to have committed abuse or neglect against a child.
Contact Us for Legal Advice
Here at the Madonna Law Group our experienced attorneys help resolve a wide variety of family law issues related to guardianships, annulments, prenuptial and postnuptial agreements, stepparent adoptions, divorces, etc. If you live in Florida and have legal questions about a family law matter contact our Dade City office to schedule a confidential consultation by calling (352) 567-0411 today.