Restoration of Rights and Ending a Guardianship in Florida
Fla. Stat. § 744.464
A Florida ward can ask the court to restore some or all removed rights by filing a suggestion of capacity in the guardianship case. The court appoints a physician to examine the ward, objections are due within 20 days, and the court restores rights if a preponderance of the evidence shows restoration is warranted (Fla. Stat. § 744.464).
What it is
An adjudication of incapacity is meant to be reviewed. A person determined to be incapacitated keeps the right to continuing review of the need to restrict his or her rights and the right to be restored to capacity at the earliest possible time (Fla. Stat. § 744.3215(1)(b)–(c)). The person also retains every right the court did not specifically remove (§ 744.331(6)(e)).
The procedure is a "suggestion of capacity" under § 744.464. It is filed with the court where the guardianship is pending (§ 744.464(1)). Any interested person, including the ward, may file it, and it must state that the ward is currently capable of exercising some or all of the rights that were removed, including the capability to exercise them independently with appropriate assistance (§ 744.464(2)(a)).
Restoration can be partial. The court may restore all removed rights or only some. If only some are restored, the order must state which ones, and the guardian must file a new guardianship report addressing only the rights the guardian still holds within 60 days after the order (§ 744.464(3)(c)). Rights that may be removed, and therefore restored, include the rights to marry, vote, have a driver license, travel, and seek employment, and delegable rights such as the rights to contract, manage property, determine residence, and make health care decisions (§ 744.3215(2)–(3)).
Restoration is one way a guardianship ends. A guardianship also ends when the ward becomes sui juris, when the guardian cannot locate the ward through diligent search, when the property in a property guardianship has been exhausted, or when the ward dies (§ 744.521). For the general guardianship process, see our Orlando guardianship overview.
Who Can File and What the Suggestion Must Show
Under Fla. Stat. § 744.464:
- Any interested person, including the ward, may file a suggestion of capacity (§ 744.464(2)(a)).
- It is filed with the court in which the guardianship is pending (§ 744.464(1)).
- It must state that the ward is currently capable of exercising some or all of the removed rights, including with appropriate assistance (§ 744.464(2)(a)).
- The court immediately sends notice to the ward, the guardian, the ward's attorney (if any), and other interested persons it designates; the guardian receives formal notice (§ 744.464(2)(c)).
- If the matter is set for hearing and the ward does not have an attorney, the court appoints one (§ 744.464(2)(e)).
Evidence of improvement may already be in the court file. Each annual guardianship plan for an adult ward must include a report from a physician or advanced practice registered nurse who examined the ward, with an evaluation of the ward's condition and a statement of the ward's current level of capacity (Fla. Stat. § 744.3675(1)(b)).
Restoration vs. the Original Incapacity Case
| Aspect | Restoration of Rights and Ending a Guardianship in Florida | Original Incapacity Case (§ 744.331) |
|---|---|---|
| How it starts | Suggestion of capacity by any interested person, including the ward (§ 744.464(2)(a)) | Verified petition executed by an adult (§ 744.3201) |
| Medical evaluation | One court-appointed physician; report within 20 days (§ 744.464(2)(b)) | Three-member examining committee; reports within 15 days (§ 744.331(3)) |
| Hearing | Only if an objection is filed or the exam does not support full restoration (§ 744.464(2)(e), (3)(a)) | Adjudicatory hearing (§ 744.331(5)) |
| Standard of proof | Ward must show restoration is warranted by a preponderance of the evidence (§ 744.464(3)(b)) | Incapacity must be established by clear and convincing evidence (§ 744.331(5)(c)) |
| Scheduling | Court must give priority and advance the case on its calendar (§ 744.464(4)) | Hearing 10 to 30 days after the last committee report, unless good cause is shown (§ 744.331(5)(a)) |
How a Restoration Case Proceeds
The court must give priority to a suggestion of capacity and advance the case on its calendar (Fla. Stat. § 744.464(4)).
- Filing: the suggestion of capacity is filed in the pending guardianship (§ 744.464(1)).
- Physician: the court immediately appoints a physician to examine the ward, who files a report within 20 days after appointment (§ 744.464(2)(b)).
- Notice: the court immediately sends notice of the filing; formal notice is served on the guardian (§ 744.464(2)(c)).
- Objections: due within 20 days after service of the notice (§ 744.464(2)(d)).
- Hearing, if needed: set when an objection is timely filed or the medical examination suggests full restoration is not appropriate. Notice of the hearing, the objections, and the medical reports are served on the ward, the ward's attorney, the guardian, the ward's next of kin, and others the court directs (§ 744.464(2)(e)–(f)).
- Order: restoring all or some of the removed rights, or denying the suggestion (§ 744.464(3)).
- Wind-down: when a ward is restored to capacity, the guardian files a final report and receives a discharge, and the court may require proof of the removal of incapacity (§ 744.521). If no objections are filed and the guardian has made full distribution and otherwise faithfully discharged his or her duties, the court approves the final report (§ 744.527(1)).
Is an attorney required?
Losing the right to contract does not take away a ward's rights to access the courts and to counsel (Fla. Stat. § 744.3215(1)(k)–(l)), and the court appoints an attorney if a hearing is set and the ward has none (§ 744.464(2)(e)). Guardians and family members with concerns have 20 days after service of notice to object (§ 744.464(2)(d)). On either side, the case turns on the medical evidence and on a clear description of which rights the ward can now exercise, with or without assistance. We represent wards seeking restoration and guardians responding to a suggestion of capacity; contested matters are discussed on our contested guardianship page.
Frequently Asked Questions
How do you get rights restored after a guardianship in Florida?
File a suggestion of capacity with the court where the guardianship is pending (Fla. Stat. § 744.464(1)). The ward or any interested person may file it. The court appoints a physician to examine the ward and sends notice to the guardian and others. If no one objects within 20 days and the medical examination supports it, the court may restore rights without a hearing; otherwise it sets a hearing (§ 744.464(2)–(3)).
What is a suggestion of capacity in Florida?
It is the filing that starts a restoration proceeding in a Florida guardianship. Under Fla. Stat. § 744.464(2)(a), it must state that the ward is currently capable of exercising some or all of the rights that were removed, including the capability to exercise them independently with appropriate assistance. Any interested person, including the ward, may file it, and the court must give it priority on the calendar (§ 744.464(4)).
Who has the burden of proof to restore capacity in Florida?
At a hearing, the ward has the burden of proving by a preponderance of the evidence that restoration is warranted (Fla. Stat. § 744.464(3)(b)). That is a lower standard than the clear and convincing evidence needed to find a person incapacitated in the first place (§ 744.331(5)(c)). At the hearing, the ward may testify or remain silent, present evidence, call and cross-examine witnesses, and choose an open or closed hearing (§ 744.1095).
Can a ward get back the right to vote or drive in Florida?
Yes, if the court restores it. The rights to vote and to have a driver license are among the rights an incapacity order may remove (Fla. Stat. § 744.3215(2)). A suggestion of capacity may ask the court to restore some or all removed rights, and an order restoring only some rights must state which rights are restored (§ 744.464(2)(a), (3)(c)).
How do you end a guardianship in Florida?
A guardianship ends when the ward is restored to capacity or becomes sui juris, when the guardian cannot locate the ward through diligent search, when the property in a property guardianship is exhausted, or when the ward dies. The guardian then files a final report and seeks discharge; a guardian of the person is discharged on filing a certified copy of the death certificate (Fla. Stat. §§ 744.521, 744.527). A voluntary guardianship can be ended by the ward's notice (§ 744.341(5)).
How long does a restoration of capacity case take in Florida?
The statute sets several deadlines. The physician's report is due within 20 days after appointment (Fla. Stat. § 744.464(2)(b)), objections are due within 20 days after service of notice (§ 744.464(2)(d)), and the court must give the case priority on its calendar (§ 744.464(4)). If only some rights are restored, the guardian files a new report within 60 days (§ 744.464(3)(c)). Overall timing depends largely on whether anyone objects.
Does the court appoint a new examining committee to restore capacity?
No. The original incapacity case uses a three-member examining committee (Fla. Stat. § 744.331(3)). A suggestion of capacity instead leads the court to immediately appoint a physician, who examines the ward and files a report within 20 days (§ 744.464(2)(b)). The court sets a hearing if an objection is timely filed or if the medical examination suggests that full restoration is not appropriate (§ 744.464(2)(e)).
The information on this page is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Florida law changes. Consult a licensed Florida attorney for guidance specific to your matter.
Seeking restoration, or responding to a suggestion of capacity?
Call (407) 843-0430 or schedule a consultation with our Orlando guardianship attorneys. When a ward has died and the guardianship property must pass to heirs, see our overview of Florida probate.
Or text PROBATE to (407) 906-9507 for a faster response.
Yergey & Yergey, P.A. | 910 N. Fern Creek Avenue, Orlando, FL 32803
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