Guardianship Attorneys in Miami

When a loved one can no longer make decisions for themselves due to incapacity, establishing a legal guardianship may be the most effective way to protect their health, safety, and financial well-being. At the Law Offices of Albert Goodwin, PA, our Miami guardianship attorneys guide families through every stage of the Florida guardianship process, from filing the initial petition to fulfilling ongoing reporting obligations. Call us at 786-522-1411 or email us at [email protected] to schedule a consultation at our Coral Gables office.

What Is Guardianship in Florida?

Guardianship is a legal proceeding in which a court appoints a responsible person or entity, known as the guardian, to exercise legal rights on behalf of an individual who has been adjudicated incapacitated, known as the ward. Florida law recognizes that some individuals, whether due to age, illness, injury, or disability, may be unable to manage their personal affairs, their property, or both. The guardianship system exists to protect these vulnerable individuals while preserving as many of their rights as possible.

In Florida, guardianship proceedings are governed by Florida Statutes Chapter 744, also known as the Florida Guardianship Law. Chapter 744 sets forth the requirements for establishing a guardianship, the qualifications for serving as a guardian, the duties and responsibilities of guardians, and the court oversight mechanisms that protect the interests of the ward. Because guardianship removes fundamental rights from an individual, Florida courts treat these proceedings with great care and require strict compliance with statutory procedures.

Types of Guardianship in Florida

Florida law provides several types of guardianship, each designed to address different levels of incapacity and different needs. Understanding the distinctions is critical when determining which form of guardianship is appropriate for your loved one.

Plenary Guardianship (Full Guardianship)

A plenary guardianship is the most comprehensive form of guardianship available under Florida law. When a court establishes a plenary guardianship, the ward is found to lack the capacity to perform all of the tasks necessary to care for their person or property. The plenary guardian exercises all delegable legal rights on behalf of the ward. Because a plenary guardianship removes virtually all decision-making authority from the ward, it is considered a last resort and is only appropriate when less restrictive alternatives are insufficient to protect the individual.

Limited Guardianship

A limited guardianship is established when the court finds that the ward lacks the capacity to perform only some of the tasks necessary to care for their person or property. Under a limited guardianship, the court order specifies which rights are removed from the ward and delegated to the guardian, while all other rights are retained by the ward. Florida law favors limited guardianship over plenary guardianship whenever possible, consistent with the principle of imposing the least restrictive form of intervention. The limited guardian can only exercise those rights specifically designated in the court order.

Guardian of the Person vs. Guardian of the Property

Florida law also distinguishes between a guardian of the person and a guardian of the property. A guardian of the person is responsible for decisions related to the ward's personal care, including medical treatment, living arrangements, social activities, and daily needs. A guardian of the property is responsible for managing the ward's financial affairs, including assets, income, investments, and expenditures. In some cases, the same individual or entity serves in both capacities. In other cases, the court may appoint separate guardians for the person and the property, particularly when the ward has significant assets that require specialized financial management.

Voluntary Guardianship

Under Florida Statute Section 744.341, a person who is mentally competent but recognizes that they are unable to manage their own property may voluntarily petition the court for the appointment of a guardian of their property. A voluntary guardianship does not require a determination of incapacity. The individual retains the right to revoke the voluntary guardianship at any time. This type of guardianship can be a useful tool for individuals who want assistance managing their financial affairs without the need for a full incapacity proceeding.

Pre-Need Guardian Designation

Florida Statute Section 744.3045 allows a competent adult to designate a pre-need guardian by filing a written declaration naming the person they wish to serve as their guardian in the event they later become incapacitated. This designation provides individuals with the ability to choose their own guardian in advance, giving them control over who will make decisions on their behalf if the need arises. While the court is not bound by the designation, it must give the pre-need guardian preference unless the court determines that serving as guardian is not in the best interest of the ward. Pre-need guardian designations are an important component of comprehensive estate planning.

The Guardianship Process in Florida

Establishing a guardianship in Florida involves a structured legal process with multiple steps designed to protect the rights of the alleged incapacitated person.

Filing the Petition

The guardianship process begins with the filing of a petition to determine incapacity in the circuit court of the county where the alleged incapacitated person resides. The petition must include specific information, including the facts supporting the claim of incapacity, the name of a proposed guardian, and a description of the type of guardianship being sought. Upon the filing of the petition, the court appoints an attorney to represent the alleged incapacitated person if they do not already have legal representation.

Examining Committee

After the petition is filed, the court appoints a three-member examining committee to evaluate the alleged incapacitated person. The examining committee must include at least one physician and may also include a psychiatrist, psychologist, gerontologist, or other qualified professional. Each member of the committee conducts an independent examination of the individual and files a written report with the court. The reports must address the individual's functional limitations, the extent of their incapacity, and whether less restrictive alternatives to guardianship exist. This committee requirement is a critical safeguard under Florida Statutes Chapter 744 to ensure that guardianship is established only when truly necessary.

Adjudicatory Hearing

After the examining committee files its reports, the court holds an adjudicatory hearing to determine whether the individual is incapacitated and, if so, the extent of the incapacity. The alleged incapacitated person has the right to be present at the hearing, to be represented by counsel, to present evidence, and to cross-examine witnesses. If the court determines that the individual is incapacitated, it will enter an order specifying the nature and extent of the incapacity and the rights that are to be removed from the individual.

Appointment of Guardian

Following the determination of incapacity, the court considers the appointment of a guardian. The court evaluates the qualifications of the proposed guardian and determines whether the proposed guardian is suitable to serve. Before being appointed, the proposed guardian must file an application disclosing their background, qualifications, and any potential conflicts of interest. Once appointed, the guardian must take an oath, file a bond if required by the court, and complete a court-approved guardianship education course within four months of appointment.

Who Can Serve as Guardian in Florida

Under Florida law, the following persons and entities may serve as guardian:

Any resident of Florida who is at least 18 years old and has not been convicted of a felony
A nonresident of Florida who is related to the ward by blood, marriage, or adoption
A professional guardian registered with the Statewide Public Guardianship Office
A financial institution authorized to exercise fiduciary powers in Florida
A nonprofit corporation organized for religious or charitable purposes

The court gives preference to the ward's spouse, family members, and any person designated as a pre-need guardian under F.S. Section 744.3045. The court's primary consideration in selecting a guardian is the best interest of the ward.

Guardian's Duties and Responsibilities

Serving as a guardian in Florida carries significant legal duties and responsibilities. A guardian is a fiduciary who must act in the best interest of the ward at all times. Key responsibilities include:

Guardian of the Person: Making decisions regarding the ward's medical care, residential placement, education, and social environment. The guardian must ensure that the ward is provided with adequate food, clothing, shelter, and medical treatment. The guardian must also file an annual guardianship plan with the court detailing the ward's condition and the guardian's plans for the ward's care.
Guardian of the Property: Prudently managing the ward's assets, paying debts and expenses, investing funds appropriately, and maintaining accurate financial records. The guardian of the property must file an initial inventory of the ward's assets within 60 days of appointment and must file annual accountings with the court detailing all financial transactions.
Court Approval: Certain actions require prior court approval, including the sale of real property, changes in the ward's residence, extraordinary expenditures, and decisions regarding the ward's end-of-life care.
Maintaining the Ward's Rights: The guardian must respect and preserve any rights that the ward retains under the court order establishing the guardianship, and must encourage the ward to participate in decision-making to the greatest extent possible.

Annual Reporting Requirements

Florida law imposes strict annual reporting requirements on guardians to ensure ongoing court oversight and accountability. Guardians of the person must file an annual guardianship plan that addresses the ward's physical and mental health, living situation, social condition, and any recommended changes to the guardianship. Guardians of the property must file an annual accounting that provides a detailed summary of all receipts, disbursements, and assets under management during the reporting period. Failure to timely file these reports can result in sanctions, removal of the guardian, and other penalties. Our attorneys assist guardians in preparing and filing all required reports to ensure compliance with Chapter 744.

Alternatives to Guardianship

Because guardianship is a significant restriction on an individual's rights, Florida law encourages the use of less restrictive alternatives when they are sufficient to meet the individual's needs. Common alternatives include:

Durable Power of Attorney: A durable power of attorney allows an individual to designate an agent to manage their financial and legal affairs. Unlike a standard power of attorney, a durable power of attorney remains effective even if the principal becomes incapacitated. Executing a durable power of attorney while competent can avoid the need for a guardianship of the property.
Health Care Surrogate Designation: Under the Florida Health Care Advance Directives Act, an individual can designate a health care surrogate to make medical decisions on their behalf if they become unable to do so. A valid health care surrogate designation can eliminate the need for a guardianship of the person for medical decision-making purposes.
Voluntary Guardianship: As discussed above, a voluntary guardianship under F.S. Section 744.341 allows a competent person to voluntarily request the appointment of a guardian for their property without the need for an incapacity determination.
Living Trusts: A revocable living trust can provide for the management of an individual's assets by a successor trustee in the event of incapacity, without the need for court-supervised guardianship of the property.
Representative Payee or VA Fiduciary: For individuals whose primary income is Social Security or veterans' benefits, the appointment of a representative payee or VA fiduciary may be sufficient to manage their financial needs.

Proactive estate planning is the best way to avoid the time, expense, and emotional difficulty of a contested guardianship proceeding. We strongly encourage individuals to consult with an attorney to put appropriate legal documents in place while they are still competent to do so.

How Our Miami Guardianship Attorneys Can Help

Guardianship proceedings in Florida are complex and involve significant legal, medical, and personal considerations. Whether you need to establish a guardianship to protect a loved one, you are seeking to serve as a guardian, or you are a guardian who needs assistance fulfilling your duties, the Law Offices of Albert Goodwin, PA can provide the experienced legal representation you need. Our services include:

Filing petitions to determine incapacity and establish guardianship
Representing proposed guardians in appointment proceedings
Defending individuals against unwarranted guardianship petitions
Advising guardians on their duties and responsibilities under Chapter 744
Preparing annual guardianship plans and accountings
Seeking modifications or termination of existing guardianships
Assisting with emergency temporary guardianship petitions
Advising on alternatives to guardianship, including estate planning documents
Handling guardianship matters in connection with probate proceedings

We understand that guardianship matters are deeply personal and often arise during times of family crisis. Our attorneys are committed to guiding you through the process with compassion, professionalism, and a thorough understanding of Florida guardianship law.

Contact us today to discuss your guardianship matter. Call 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz # 1000, Coral Gables, FL 33134, and we serve clients throughout Miami-Dade County and the state of Florida.