Florida Guardianship Attorney

At Deeb Elder Law, our attorneys have extensive experience working with the elderly, mentally ill, and disabled individuals and their families concerning guardianships and related matters.

We understand that dealing with the incapacity of a loved one is never easy. Located in St. Petersburg, we have helped families throughout the Tampa Bay area carry out all legal aspects of guardianship situations. Please call (727) 381-9800 to learn how we can assist you.

What Is a Guardian?

A guardian is appointed by the court to act on behalf of an individual’s person, property, or both. Guardianships are established for individuals who need assistance in taking care of and protecting themselves and/or their property. A person for whom a guardianship is established is a ward.

Florida guardianships are supervised by the court, and guardians are required to seek court approval to perform certain tasks, such as selling a ward’s property. A guardian must file yearly reports with the court on each case. A guardian can be an individual, a nonprofit corporation, or a financial institution such as a bank trust department.

Deeb Elder Law represents both professional guardians and also individuals who are appointed to serve as guardians for family members. Professional guardians must complete a specialized course, pass a comprehensive examination, post a blanket bond with the court, undergo background investigations and register with the Department of Elder Affairs through the Statewide Public Guardianship Office. Family guardians must complete several requirements as well.

When Is a Guardianship Established?

A guardian may be appointed by the court when an individual has been declared incapacitated, usually because of illness or injury.

Prior to making a determination of an individual’s capacity, the court must appoint an examining committee to report to the court on the person’s ability to exercise specific rights, such as the right to contract and the right to consent to medical treatment. The examining committee consists of three individuals who meet specific criteria set out in the applicable statute, one of whom must be a psychiatrist or other type of physician.

In the incapacity hearing, the alleged incapacitated person is represented by a court-appointed attorney. After the presentation of evidence, the court determines whether the individual is incapacitated, and what, if any, rights the individual has the capacity to continue to exercise.

A minor guardianship must be established when a child is going to receive more than $15,000, usually in settlement of a claim or as a result of a judgment in favor of the child. These guardianships are established because the prospective ward is a child. Therefore, the court is not required to appoint an examining committee prior to the appointment of a guardian for a child.

If an individual wishes to have a guardian of the property appointed and supervised by the court, and the individual is not incapacitated, a voluntary guardianship of the property is sometimes desirable. For example, a person who believes that he or she is at risk of exploitation—because of their difficulty in refusing requests for money from friends and relatives—may benefit from a voluntary guardianship.

The susceptible individual would have the benefit of having a guardian being fully responsible for the individual’s finances, and the guardian would be held accountable by the court for performing his or her fiduciary duties properly. A competent adult may petition for the appointment of a voluntary guardian for himself or herself.

The Court may appoint a guardian advocate, without adjudication of incapacity, for a person with developmental disabilities, if the person lacks the decision making ability to do some, but not all, of the decision making tasks necessary to care for his or her person or property or if the person has voluntarily petitioned for the appointment of a guardian advocate. Developmental disabilities are disorders or syndromes that are attributable to intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome that manifests before the age of 18 and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely. The appointment of a guardian advocate is a less restrictive form of guardianship.

A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity.

Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent’s minor child by making a written declaration that names such guardian to serve if the minor’s last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.

What Are Alternatives to Guardianships?

GuardianshipsAlternatives to guardianship, such as a Durable Power of Attorney or a Health Care Surrogate, a Power of Attorney for Health Care, may be available to protect the individual.

Removing an individual’s rights is a serious matter. Therefore, Florida law requires the use of less restrictive alternatives to protect those incapable of caring for themselves and managing their financial affairs when such alternatives are available and adequate to protect the individual.

For example, if a person creates an Advance Health Care Directive and a Durable Power of Attorney or Living Trust while competent, he or she may not require a guardian in the event of future incapacity.

If the court finds that the person is incapacitated, and no adequate alternatives are available, it will then appoint a guardian for the incapacitated person.

What Does a Guardian Do?

Guardianships can be plenary or limited, and the activities of the guardian are dependent on the type of guardianship established by the court.

A plenary guardianship is a full guardianship over the person and/or property of the ward, and the guardian is responsible for managing the ward’s care and finances. A limited guardianship is one in which the guardian is responsible for specific aspects of the ward’s care, as delineated by the court.

A limited guardian may be appointed as guardian of the person only or as guardian of the property only. A guardian of the person is responsible for making decisions about medical treatment, mental and personal care services, and the ward’s residence. A guardian of the property is responsible for the ward’s finances and property, and must file an inventory of the ward’s property with the court, invest funds prudently, use assets to benefit the ward, and account for the property to the court on a yearly basis.

A limited guardian may also be appointed to manage both the person and property of the ward, with the ward retaining specific rights, such as the right to vote or the right to determine residence.

How Is a Guardian Held Accountable?

All guardians (with the exception of guardian advocates) are represented by attorneys and supervised by the court. Both professional and family guardians are required to furnish bonds to cover the value of the ward’s assets. All guardians are required to complete a court-approved training program and are required to have background and credit checks

All guardians (with the exception of guardian advocates) are required to submit annual reports of the person and/or property which are reviewed by both the clerk of the court and the judge assigned to the case. Guardians who do not comply with court requirements may be removed and sanctioned.

Experience Matters – Pinellas County Guardianship Attorney

For over 30 years, Deeb Elder Law has served the people of Pinellas, Hillsborough and Pasco Counties with their Elder Law and Guardianship legal concerns. We maintain one of the largest Guardianship caseloads in Pinellas County. Contact our office to discuss your matter with our attorneys.