Guardianship and Estate Planning in Florida
Guardianship is meant to assist people who cannot make decisions for themselves, under a variety of circumstances. If a person has completed proper disability planning, he or she may not require a guardian in the event of incapacity. Similarly, if clients have established trusts for their minor children, there would be no need for a guardianship of the property of their minor children upon the death of the surviving parent, unless the child acquires a property interest some other way (e.g., because of a personal injury).
At Purcell, Flanagan, Hay & Greene, our estate planning lawyers can help you understand how guardianship works and how you can use them as a comprehensive plan to protect your assets and prepare for the future.
What is a guardianship?
A guardianship is a legal proceeding in which a person (the, “guardian”) is appointed to exercise the legal rights of an incapacitated person, or a person who has not attained age 18. The process is governed by Chapter 744, Florida Statutes. There is a different type of guardianship for a person with developmental disabilities, which is discussed below under “Guardian Advocacy”.
What is a guardian?
A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person — called a “ward” — or for the ward’s assets.
Who is incapacitated?
An incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements of the person. This person is sometimes referred to as the “ward”.
How is a person determined to be incapacitated?
Any adult may file a petition with the court to determine another person’s incapacity, setting forth the factual information upon which they base their belief that the person is incapacitated.
The court then appoints a committee of three members, usually two physicians and another person who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.
The examination of the incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.
The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that adequately address the person’s incapacity.
Who may serve as a guardian?
The court can appoint anyone who is “fit” and “qualified to act” as guardian, regardless of whether that person is related to the ward. The court looks at factors like education, ability to manage finances, and any other factor it feels is relevant to the ward’s situation.
Individuals who are professional or public guardians can serve as guardian. Additionally, an institution such as a nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the property.
Must the court give preference to the appointment of a relative?
- The court must give preference to a person related by blood or marriage to the ward.
- The court must also consider the wishes expressed by the incapacitated person. A pre-need declaration of guardian is a form that someone can execute prior to becoming incapacitated. It effectively informs the court who that person would want to serve as their guardian in the event they become incapacitated in the future.
Who may not serve as a guardian?
- People who have been convicted of a felony or who are incapable of carrying out the duties of a guardian.
- The court may not appoint a guardian if the court finds there would be a conflict of interest between the ward and the guardian.
What does a guardian do?
A guardian who is given authority over property of the ward is required to inventory the property, invest it prudently, use it for the ward’s support and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care along with a physician’s report.
If the court finds the ward partially incapacitated, it will appoint a limited guardian to perform only those rights that the ward is incapable of exercising.
Is a guardian accountable?
Yes. A guardian must be represented by an attorney who will serve as “attorney of record.” Guardians are usually required to furnish a bond (financial institutions and public guardians are not required to file a bond) and may be required to complete a court-approved training program.
The clerk of the court reviews all annual reports of guardians of the person and property and presents them to the court for approval. Guardians who do not properly carry out their responsibilities may be removed by the court.
Is guardianship permanent?
The guardianship does not have to be permanent. If a ward recovers in whole or part from the condition that caused that person to be incapacitated, a petition can be filed with the court to restore the ward’s rights. In such a case, the court will have the ward re-examined and can restore some or all of the ward’s rights.
A guardian may be held accountable and removed as guardian if the guardian fails to carry out the expected duties or otherwise becomes ineligible to act as guardian. A guardian also may resign by providing notice to the court.
Is guardianship the only means of helping an incapacitated person?
No. Florida law requires the use of the least restrictive alternative to protect people incapable of caring for themselves and managing their financial affairs whenever possible. If a person has completed proper disability planning, he or she may not require a guardian in the event of incapacity.
What about guardians for minors?
A child’s parents are the child’s natural guardians and in general may act for the child. 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 $15,000, the court must appoint a guardian. Both parents or a surviving parent may make and file with the clerk of the court a written declaration naming a guardian of the child’s person or property to serve if both parents die or become incapacitated. A guardian also may be designated in a will.
What is a Guardian Advocate?
Parents no longer have the legal authority to make decisions for their children after they turn 18 years of age. Guardian Advocacy is a process for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf 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. This is accomplished without having to declare the person with a developmental disability incapacitated. Guardian Advocate appointments are governed by Florida Statute §393.12 as well as Florida Statute chapter 744.
Who is developmentally disabled?
Under Florida Statute §393.063(12), a person with a developmental disability must have an Intellectual Disability (IQ less than 70), Cerebral Palsy, Autism, Spina Bifida, Downs Syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome that manifested before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
Are there different types of Guardian Advocacy?
Yes. You can apply to be Guardian Advocate of the Person, the Property or both. A Guardian Advocate of the Person can seek to make personal decisions, including determining residence, consenting to medical or mental health treatment, and making social decisions. A Guardian Advocate of Property can ask the court to make property decisions, like contracting, suing and defending lawsuits, and managing property or making gifts. Generally, both can request the right to seek government benefits.
Are the powers of a Guardian Advocate different than the powers of a full guardian?
No. A Guardian Advocate has the same powers and duties as a guardian under chapter 744, Florida Statutes, limited only by the court’s order that sets out the types of decisions delegated.
Who may serve as a Guardian Advocate?
Any resident of the State of Florida who is 18 years old and of sound mind is qualified to act as a Guardian Advocate. In addition, a non-resident may serve if he or she is related to the person with a developmental disability by blood, adoption or law according to Florida Statute §744.309(2). The court may appoint any person whom it considers fit, proper, and qualified to act as guardian whether or not that person is related to the person with a developmental disability.
Are relatives given preference to serve as Guardian Advocate?
Generally, yes. Florida Statutes provides that the court should give preference to a person who:
- Is related by blood or marriage to the person with a developmental disability;
- Has relevant educational, professional or business experience;
- Has the capacity to manage the finances involved; or
- Has the ability to meet the requirements of the law and the unique needs of the individual.
The court is also required to consider the wishes expressed by a person with a developmental disability as to who shall be appointed guardian or the wishes of the next of kin (closest living relatives) of the person with a developmental disability if the person with a developmental disability cannot express a preference.
Who may NOT serve as a Guardian Advocate?
- No person who has been convicted of a felony can be appointed to act as a Guardian Advocate.
- No person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in Florida Statutes §39.01 and §984.03(1), (2), and (37), or who has been found guilty of, regardless of adjudication, or entered a plea of no contest to any offense prohibited under Florida Statute §435.04 (level 2 screening standards) or under any similar statute of another jurisdiction.
- No person who provides substantial services to the person with a developmental disability in a professional or business capacity, or is a creditor of the person with a developmental disability, if such person retains that previous professional or business relationship.
- No person who is an employee of any person, agency, government, or corporation that provides service to the person with a developmental disability in a professional or business capacity, unless that person is the spouse, adult child, parent, or sibling of the proposed person with a developmental disability or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the best interest of the person with a developmental disability.
- No person who is a provider of health care services to the person with a developmental disability, whether direct or indirect, unless the court specifically finds there is no conflict of interest with the best interest of the person with a developmental disability.
When do I file a petition to be appointed Guardian Advocate?
In order to avoid the gap between the child’s eighteenth birthday and the appointment of a Guardian Advocate, the petition may be initiated within 180 days of the child’s 18th birthday.
Once I am appointed as a Guardian or Guardian Advocate, what are my responsibilities?
Guardians are fiduciaries and have a duty to administer the guardianship for the benefit of the Ward. Each guardian (even if you are the parent of the person with developmental disabilities, as a Guardian Advocate) must answer to the oversight of the court. Your rights as a Guardian are limited by the Order and by the type of Guardian (i.e., limited, plenary, guardian advocate). If you need greater rights, you will need to seek further approval from the court. In addition, there are certain decisions that cannot be made without prior court approval, like moving the residence of the ward outside of the county.
Guardian education requirements
- Each person appointed by the court to be a guardian, other than a parent who is the guardian of the property of a minor child, must receive a minimum of 8 hours of instruction and training.
- Each person appointed by the court to be the guardian of the property of his or her minor child must receive a minimum of 4 hours of instruction and training.
To satisfy either of the foregoing requirements, each guardian must, within four (4) months of his or her appointment, complete the appropriate guardianship instruction and training course. Expenses incurred by the guardian to satisfy the education requirement may be paid from the ward’s estate, unless the court directs that such expenses be paid by the guardian individually.
Initial and annual court reports
- Within 4 months of appointment, you may need to complete a court-approved guardianship education course. Occasionally, the court will waive this requirement.
- Within 60 days of appointment guardian of the person must file an Initial Report setting out the mental health, medical, social and personal care service needs of the person with developmental disabilities and how those will be met. A similar report needs to be filed with the Court annually (within 90 days from the anniversary date of appointment.)
- Within 60 days of appointment a guardian of the property must file an inventory of assets
- Each year, a guardian of the person must file an annual report of the setting out the plan for the care and wellbeing of the person for the upcoming year.
- Each year, a guardian of the person must file an annual financial accounting with the court.
Do I need an attorney to become a Guardian?
If you are a Guardian Advocate of the person and have only been delegated the right to be representative payee of government benefits, no. All other guardians are required to be represented by an attorney.
Are there benefits to retaining an attorney?
Not only can an attorney help you with the forms, but he or she will guide you through the court system and make sure you understand your responsibilities as a guardian. Even before you file, an attorney should inform you of alternatives to guardianship and determine if a less restrictive alternative is available. The court is required to make that same determination, which could result in denial of your petition.
How do I avoid the need for a legal guardian?
For people with capacity:
Advanced Directives: Written in “advance” of need, the following are documents that express a person’s desire or give decision-making authority to someone who is trusted. In each case, the person must have the mental capacity to understand what they are doing at the time the directive is signed. Each has legal requirements for both the contents and validity.
Durable Power of Attorney: If a person has the capacity to understand the transfer of decision-making rights to another, a durable power of attorney may be appropriate. This is a legal document that allows the “grantor” to give decision-making rights to an “agent” (also known as “attorney-in-fact.”) The rights granted can be as broad or as limited as the law allows and can include health care decisions. A power of attorney is “durable” when it is intended to continue even if the grantor becomes incapacitated.
Health Care Surrogate: This is a written document that names one or more people to represent you in health care decisions if you become unable to make them.
Living Will: This document sets out the maker’s wishes for the withholding or withdrawal of life prolonging procedures in the event of a terminal condition.
Revocable Living Trust: In addition to executing the foregoing documents, we recommend that clients execute and fund a revocable living trust. By placing assets in a trust and then designating successor trustees, you can eliminate the need for a guardianship of the property.
For people with limited capacity:
Medical Proxy: Under Florida Statute §765.401, a medical proxy can make health care decisions for an “incapacitated or developmentally disabled patient” if there is no advance directive or, if there is an advanced directive, no surrogate is available to make health care decisions. The statute does not require any legal action or document for appointment as “proxy.” Instead, there is a statutory priority set forth, starting with a guardian, then moving to spouse, adult child, parent, adult sibling, adult relative “who has exhibited special care and concern,” close friend, and finally a social worker selected by a bioethics committee.
Client Advocate (only for persons with a developmental disability): Under §393.0651, if a parent is unavailable, a family member or friend may be appointed by the support planning team as the official client advocate for a person with developmental disabilities who receives services through the Agency for Persons with Disabilities. This does not result in any legal authority, but allows the client advocate to participate in decisions related to services.
Co-signer of Bank Accounts: If a bank account is set up to require more than one signature, this is a way to exercise some control over expenditures while a co-signer is learning financial skills.
Representative Payee: The Social Security Administration may appoint a representative payee to receive and manage benefits for another. The “rep payee” must account for these benefits annually.
Parent Representative (generally, only for persons with developmental disabilities): Ordinarily, when a child in the public school system turns 18, parental rights are automatically transferred to the child. If the student does not have a guardian and also does not have the ability to provide informed consent on his or her educational program, educational regulations provide that the parent can be “appointed to represent the educational interests of the student.” In any event, the school should use common sense in allowing a parent to continue to participate in IEP meetings.
What should I do if I have a guardianship from another state?
If the ward moves to Florida, the out-of-state guardian should notify the Florida court in the county of the ward’s residence. Under §744.306, the guardian has 60 days from the change of residence to file an authenticated copy of the guardianship order. If this is done, the court must give “full faith and credit” to the order. You may need a Florida attorney to assist, or to provide oversight of the guardianship and its annual reporting requirements
Our attorneys can help you understand and explore these and other tools to plan for the future.
Talk with a Florida Guardianships Lawyer
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