A legal guardian is someone who exercises responsibility and authority over the personal and/or affairs of another person, known as the ward. The ward, if mentally capable and able to communicate, may request a guardianship that can be approved by a  Florida court. If the ward is incapacitated, however, the court must make this decision even over the objections of the guardian.

Two types of guardianship are possible:

• A limited guardianship over only certain aspects of the ward’s life, such as his financial affairs only or his personal decisions only; or
• A plenary guardian, which gives the guardian authority over both the ward’s financial affairs and his personal affairs.  

What this adds up to is that if the ward requests the guardianship, a “voluntary” guardian can be appointed after a guardianship proceeding. If someone other than the ward requests guardianship, however, it becomes a two-step process — first an incapacity hearing and then, if and only if the ward is declared incompeten, an “involuntary” guardianship proceeding. If an incapacity hearing determines that the ward is competent, no guardian will be appointed. 

The Incapacity Petition

Any “interested person”  can file an incapacity petition with a Florida circuit court. An interested person means anyone who will be affected by the results of such proceedings, including:

• a relative of the proposed ward;
• a caregiver, even if not a relative;
• a neighbor; or
• A lawyer.

A lawyer with experience in guardianship matters will be appointed for the proposed ward, and a hearing will be scheduled. The court will also appoint a committee consisting of a doctor and two other health care professionals. The committee will conduct an investigation in which they will interview the proposed ward as well as his relatives and his health care providers.

Within 45 days of being formed, the committee will issue a report to the court, stating the committee’s opinion on whether the proposed ward has full capacity, is partially incapacitated or is completely incapacitated. To the extent that the proposed ward retains the ability to work with his lawyer, the lawyer will consult with him about the incapacity proceedings.

The Incapacity Hearing

After the committee submits its report to the court, a formal incapacity hearing will be held. If the examining committee determines that the proposed ward has no incapacity, the petition will be denied. Otherwise, an adversarial hearing will be held to decide whether the proposed ward is partially or totally incapacitated.

The burden of proof in Florida for determining incapacity is “clear and convincing evidence” – which is tougher to meet than the standard needed to win a civil lawsuit, but easier to meet than the standard needed to secure a criminal conviction. If this burden is met, the court will issue an order declaring the proposed ward incapacitated.

Guardianship Proceedings

Even if the proposed ward is declared incapacitate, the court may or may not schedule a guardianship proceedings, because other less restrictive measures such as a durable power of attorney may be seen as sufficient for the ward’s needs. Like the incapacity hearing, the guardianship hearing will be adversarial — and the proposed ward is entitled to a lawyer and may argue against the guardianship. 

Contact Lorenzo Law Before You Begin

Contact guardianship attorney Jose Lorenzo by calling (305) 999-5411, completing our online intake form, emailing us at [email protected] or visiting one of our offices in Coral Gables and Ft. Lauderdale. We handle cases throughout Florida.