How Does Guardianship Work in Florida and How Can You Avoid It?

Guardianship is a legal process designed to protect individuals who are unable to manage their own affairs due to incapacity. While it serves an important purpose, guardianship can be restrictive and may deprive individuals of certain rights. In Florida, understanding how guardianship works and exploring alternatives can help individuals and families make informed decisions.

What is Guardianship?

Guardianship is a court-supervised process in which a guardian is appointed to make decisions on behalf of an incapacitated person, known as the ward. The purpose of guardianship is to ensure the ward’s physical, emotional, and financial well-being when they are unable to do so themselves.

In Florida, there are several types of guardianship:

• Plenary Guardianship: The guardian has full authority over the ward’s person and property.
• Limited Guardianship: The guardian has authority over specific areas of the ward’s life, as determined by the court.
• Emergency Temporary Guardianship: A temporary guardian is appointed in urgent situations to address immediate needs.
• Guardian Advocacy: A guardian is appointed for an individual with certain conditions, like autism, when the individual has the condition from early in life and turns 18 years of age.
• Minor Guardianship for Property in Excess of $15,000: A guardian, usually a parent, is required to be appointed when a minor receives property in excess of $15,000.

The process begins with a petition for determination of incapacity, followed by the appointment of an examining committee to evaluate the individual’s condition. If the court determines that the individual is incapacitated and no less restrictive alternatives are available, a guardian is appointed.  With a guardian advocacy, the petition is supported by a doctor’s or school report which shows the condition.

Rights of Incapacitated Individuals

Florida law emphasizes the importance of protecting the rights of incapacitated individuals. Even when a person is deemed incapacitated, they retain certain rights, such as the right to be treated with dignity, to have access to the courts, and to be restored to capacity if possible. The court is required to consider less restrictive alternatives before appointing a guardian, ensuring that the individual’s autonomy is preserved to the greatest extent possible.

How to Avoid Guardianship

Guardianship can often be avoided through careful planning and the use of legal tools that allow individuals to retain control over their affairs. Some common alternatives to guardianship in Florida include:

• Advance Directives: These documents, such as a living will or health care surrogate designation, allow individuals to specify their preferences for medical care and appoint someone to make health care decisions on their behalf.
• Durable Power of Attorney: This legal instrument enables an individual to appoint someone to manage their financial affairs if they become incapacitated.
• Trusts: A trust can be established to manage an individual’s assets, ensuring that their financial needs are met without the need for a guardian.
• Representative Payee: For individuals receiving government benefits, a representative payee can be appointed to manage those funds.

By utilizing these alternatives, individuals can maintain greater control over their lives and reduce the likelihood of needing a court-appointed guardian.

Conclusion

Guardianship is a vital legal mechanism for protecting vulnerable individuals, but it is not always the best or only option. By understanding the guardianship process and exploring alternatives, individuals and families can make proactive decisions that preserve autonomy and dignity. Planning ahead with tools like advance directives, durable powers of attorney, and trusts can help avoid the need for guardianship and ensure that your wishes are respected.