101 on Florida's Guardianship Process

The guardianship process of an adult in the State of Florida is the court procedure required for someone to be appointed guardian of someone who is unable to manage their own property, or properly take care of themselves and make healthcare decisions. As a guardian, the individual is allowed to protect and exercise the legal rights of another individual, known as a ward. The primary function of the guardian is to protect their ward’s assets and make decisions when required.

The first step when entering the guardianship process is to retain a Florida guardianship lawyer, as this is required by the court. Two cases are simultaneously opened: a mental health case and a guardianship case. A Petition to Determine Incapacity is filed in the mental health case, and a Petition for Appointment of Guardian is filed in the guardianship case.

The Petition to Determine Incapacity, filed in the mental health case, seeks to determine the alleged incapacitated person’s (“AIP”) level of incapacity — whether he or she can perform day-to-day activities and manage their healthcare.

The Petition for Appointment of Guardian essentially asks the court to appoint a guardian for the AIP if he or she is determined to be incapacitated. The petitioner seeking appointment must file an Application for Appointment of Guardian, as well as an Oath of Guardian. This step serves a variety of functions, but the Application for Appointment primarily informs the court about the proposed guardian and ensures they meet all the requirements determined by Florida. The Oath indicates to the court that one will faithfully perform the duties required of a guardian in an honest fashion.

After the petition is filed, along with the other required paperwork, the court then appoints an attorney for the AIP. This court-appointed attorney’s purpose is to coherently and clearly inform the AIP of the petitions filed for incapacity and guardianship, and also to evaluate and relay to the court whether the AIP requires guardianship in the first place. The attorney may determine whether the potential guardian is suitable, or in the AIP’s best interest.

Furthermore, the court will appoint a three-member examining committee to evaluate the AIP’s capacity. Pursuant to Fla. Stat. § 744.331(3), the committee members include the following:

“One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition. Unless good cause is shown, the attending or family physician may not be appointed to the committee.”

The committee members each file a detailed written report to the court that offers their professional opinion of the AIP. The report includes whether or not the AIP lacks the ability to care for themselves and their level of capacity. The court relies heavily on the opinions of the examining committee members in determining whether or not the AIP is incapacitated.

If the court determines that the AIP is incapacitated, it will enter an Order of Incapacity and make the AIP a ward of the state. At that same hearing, the court will then appoint a guardian, if one is required.

The whole process takes approximately 30–45 days after the initial petitions are filed. However, contested guardianship cases can be much more time consuming. A guardianship is known as contested when another interested party files a counter-petition to act as the guardian for the same AIP.