How to Become a Guardian in Florida

When a loved one can no longer make decisions for themselves due to mental illness, cognitive decline, or a developmental disability, a concerned family member or friend may need to step in by seeking a court-appointed guardianship. Florida Statutes Chapter 744, known as the Florida Guardianship Law, establishes the legal framework for appointing a guardian over a person, their property, or both. The process involves filing a petition, undergoing a court investigation, and receiving judicial approval before any authority is granted.

What Is Guardianship in Florida?

Guardianship is a legal relationship in which a court gives one person — the guardian — the authority to make personal and financial decisions on behalf of another person — the ward. Under Florida law, a guardian may be appointed over an adult who has been determined to be incapacitated, or over a minor child whose parents are unable to care for them. Guardianship is considered a measure of last resort because it removes fundamental rights from the ward, and courts will not grant it if less restrictive alternatives, such as a durable power of attorney or health care surrogate designation, are sufficient.

Who Can Petition for Guardianship?

Under F.S. § 744.3201, any adult resident of Florida may file a petition to determine incapacity and to appoint a guardian. The petitioner does not have to be the person who will ultimately serve as guardian. Common petitioners include:

Spouses of the allegedly incapacitated person
Adult children or other close family members
Physicians, social workers, or other professionals who have observed the person's inability to manage their affairs
State agencies, including the Department of Children and Families or the Department of Elder Affairs
Any other interested person who has knowledge of the individual's circumstances

The petition must be filed in the circuit court of the county where the alleged incapacitated person resides. It must state the facts supporting the belief that the person is incapacitated, the names and addresses of the person's next of kin, and the type of guardianship being sought.

Types of Guardianship: Plenary vs. Limited

Florida law recognizes two primary types of guardianship for adults:

Plenary Guardianship

A plenary guardianship grants the guardian complete authority over all delegable rights of the ward. This means the ward loses the right to make decisions about their person (such as where to live and what medical treatment to receive) and their property (such as managing finances and entering contracts). Because a plenary guardianship removes virtually all decision-making authority from the ward, it is reserved for cases where the examining committee finds total incapacity across all areas of life.

Limited Guardianship

A limited guardianship is the preferred alternative under Florida law. Under F.S. § 744.344, the court must impose only those restrictions necessary to protect the ward. If the examining committee determines that the person retains capacity in some areas — for example, the ability to make decisions about social activities or personal relationships — the court must craft a guardianship order that removes only the specific rights the person can no longer exercise. Limited guardianship respects the ward's autonomy to the greatest extent possible.

Other Forms of Guardianship

Guardian of the person — makes personal decisions, including medical care, living arrangements, and social environment
Guardian of the property — manages the ward's financial affairs, assets, and investments
Guardian of the person and property — handles both personal and financial matters
Emergency temporary guardianship — a short-term appointment under F.S. § 744.3031, available when the alleged incapacitated person faces imminent danger to their health, safety, or property

The Examining Committee

One of the most important features of Florida's guardianship process is the examining committee. Under F.S. § 744.331, once a petition to determine incapacity is filed, the court appoints a three-member examining committee to evaluate the alleged incapacitated person. The committee must include:

A physician (such as a psychiatrist or neurologist)
A psychologist (in most cases)
A third professional, who may be a social worker, gerontologist, registered nurse, or another qualified individual

Each member of the examining committee independently examines the person and files a written report with the court. The report must address the person's functional limitations, the extent and nature of their incapacity, and what rights the person can and cannot exercise. The examining committee's findings form the factual basis for the court's decision on whether to appoint a guardian and what powers to grant.

If a majority of the examining committee members find that the person is not incapacitated, the court must dismiss the petition.

Step-by-Step Process to Become a Guardian in Florida

Consult with a guardianship attorney. Because of the complexity of Florida guardianship law and the significant rights at stake, it is strongly recommended to work with an attorney experienced in Chapter 744 proceedings.
File the petition to determine incapacity. The petition is filed in the circuit court where the alleged incapacitated person resides. It must include the petitioner's relationship to the person, the factual basis for the claim of incapacity, and the names of the person's next of kin.
Court appoints an examining committee. Within five days of the petition being filed, the court appoints the three-member examining committee. The committee members must examine the person and file their reports with the court within a set timeframe.
Court appoints an attorney for the alleged incapacitated person. Under F.S. § 744.331(2), the court must appoint an attorney to represent the alleged incapacitated person within three days of the petition being filed if the person does not already have legal counsel.
File a petition for appointment of guardian. This separate petition identifies the proposed guardian, their qualifications, and their relationship to the alleged incapacitated person.
Background checks and credit reports. The proposed guardian must submit to a credit check, criminal background screening, and investigation by the clerk of the court. Under F.S. § 744.3135, certain criminal convictions disqualify a person from serving as guardian.
Adjudicatory hearing. The court holds a hearing to review the examining committee's reports, hear testimony, and determine whether the person is incapacitated. The alleged incapacitated person has the right to be present, to testify, to present evidence, and to cross-examine witnesses.
Order determining incapacity and appointing guardian. If the court finds incapacity, it enters an order specifying the rights removed and appoints a qualified guardian. The guardian must take an oath and file a designation of resident agent.
Complete guardianship education. Under F.S. § 744.3145, a newly appointed guardian must complete an eight-hour guardianship education course within four months of appointment.
File initial guardianship plan and inventory. The guardian of the person must file an initial guardianship plan within 60 days. The guardian of the property must file a verified inventory of the ward's assets within 60 days as well.

Who Can Serve as a Guardian?

Under Florida law, a guardian may be:

Any adult resident of Florida who is mentally and legally competent, has not been convicted of a felony, and has no conflicts of interest
A nonresident family member who meets all other qualifications and appoints a resident agent in Florida
A professional guardian — a person who is not related to the ward and serves as guardian for compensation, registered with the Statewide Public Guardianship Office under F.S. § 744.2002
A nonprofit organization qualified to serve as guardian
A public guardian appointed in counties where the Office of Public Guardian operates

The court considers the ward's best interests and any preference the ward may have expressed before becoming incapacitated. If multiple people seek appointment, the court will evaluate their qualifications, relationship to the ward, and ability to serve.

Costs of Guardianship in Florida

Guardianship proceedings involve several categories of cost:

Court filing fees — typically several hundred dollars, varying by county
Attorney's fees — the petitioner's attorney, the attorney for the alleged incapacitated person, and any guardian ad litem all must be compensated, often from the ward's estate
Examining committee fees — each of the three committee members charges a fee for their examination and report, which can range from several hundred to over a thousand dollars per examiner
Background check and credit report fees
Guardian education course fees
Annual bond premiums — a guardian of the property typically must post a bond in an amount set by the court
Ongoing attorney and guardian fees — the guardian is entitled to reasonable compensation for services rendered, and their attorney may charge for ongoing legal work related to the guardianship

In total, the initial cost of establishing a guardianship in Florida often ranges from $5,000 to $15,000 or more, depending on the complexity of the case and whether the proceedings are contested. Ongoing annual costs for professional guardians and required reporting can add several thousand dollars per year. These costs are typically paid from the ward's assets, which is one reason courts prefer less restrictive alternatives when available.

Alternatives to Guardianship

Because guardianship is a significant restriction on individual liberty, Florida law requires courts to consider whether less restrictive alternatives can meet the person's needs. Common alternatives include:

Durable power of attorney — allows a person to designate an agent to manage their financial and legal affairs, even after they become incapacitated
Health care surrogate designation — allows a person to name someone to make medical decisions on their behalf
Living trust — a revocable trust can allow a successor trustee to manage assets without court involvement
Representative payee — for Social Security benefits
Voluntary guardianship — under F.S. § 744.341, a person who is mentally competent but incapable of managing their property may voluntarily petition for appointment of a guardian

Contact a Florida Guardianship Attorney

Becoming a guardian in Florida is a serious legal undertaking that requires court approval, professional evaluations, and ongoing responsibilities. If you need to establish a guardianship for a loved one, the attorneys at the Law Offices of Albert Goodwin can guide you through every step of the process under Florida Statutes Chapter 744. Call us at 786-522-1411 or email us at [email protected] to schedule a consultation at our Coral Gables office.