Under Florida law, guardianship is the legal process to help protect an individual who is unable to manage his or her own affairs. 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. A guardian is obligated by ethical and statutory rules to make decisions for the individual or the “ward’s” best interest. All guardianships are subject to court oversight.
Florida law requires the court to appoint a guardian for minors in circumstances where the parents die or become incapacitated, or if the minor receives an inheritance, settlement or proceeds from a lawsuit or insurance policy exceeding the amount allowed by Florida Statute.
In guardianship cases concerning an adult before a guardian is appointed, the court is required to first make a determination that an individual's lacks the capacity to perform some or all of the tasks necessary to care for his or her property and/or personal rights. A gguardianship is only warranted when no less restrictive alternative, such as durable power of attorney, trust, health care surrogate, is determined by the court to be appropriate and available to protect and assist the alleged incapacitated person.
Florida law also permits a voluntary guardianship. A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own estate but who voluntarily petitions for the appointment.
The legal authority for guardianship in Florida is found in Chapter 744, Florida Statutes. The court rules that control the relationships among the court, the ward, the guardian, and the attorney are found in Part III, Florida Probate Rules and Florida Rules of Court. These statutes and rules describe the procedures, duties and obligations of guardians and attorneys, as well as the court, to ensure that they act in the best interests of the ward, minor, or person who is alleged incapacitated.
The other type of guardianship in Florida is a guardian advocacy. This is the legal process under section 393.12 of the Florida Statutes for family members, caregivers, or friends of an individual with a developmental disability to obtain the legal authority to act on his or her behalf. Upon becoming an adult, a guardian advocate may need to be appointed by the court in order to legally make decisions for the person with a developmental disability, which includes managing his or her medical needs, social, residential requirements and/or and governmental benefits. Unlike a full guardianship, the court is not required to declare the person with a developmental disability incapacitated. The focus, rather, is on the “decision-making” ability and protection of the individual with a developmental disability.