Guardianship Legal Representation: What is a Guardianship in Florida?

When someone you care about can no longer make decisions for themselves, whether due to age, illness, or disability, guardianship in Florida may become the necessary legal solution.

This court-supervised process allows a responsible adult to be appointed as a guardian to manage another person’s personal, financial, or medical affairs.

Understanding how guardianship works, when it’s appropriate, and what alternatives exist is essential before taking action.

Because this process directly affects a person’s rights and autonomy, working with a knowledgeable Florida guardianship attorney is not just helpful—it’s often critical.

Guardianship legal representation is essential for safeguarding the individual’s rights throughout the process, ensuring that personal freedoms are protected and any legal actions taken are in the best interest of the individual.

Establishing guardianship in Florida involves court oversight, detailed filings, and strict statutory requirements that a Florida guardianship lawyer handles every day.

This article explains the legal foundation of legal guardianship in Florida, outlines when and why it’s needed, and guides you through the steps with practical, attorney-level insight.

Understanding Legal Guardianship in Florida

Legal guardianship in Florida is a court-supervised process where a responsible adult is given the authority to manage the personal or financial affairs of another individual who has been legally declared incapacitated.

This might apply to an elderly parent suffering from dementia, a disabled adult child, or even a minor without available parental care.

The Florida court system takes these matters seriously. Guardianship may remove a broad spectrum of rights from an individual, and courts should remove only those rights that the adult is incapable of handling.

To initiate the process, a petitioner must demonstrate that the individual lacks the capacity to make decisions regarding health care, finances, or daily living.

The court then evaluates the case through medical assessments, legal representation, and judicial oversight.

While court staff can provide general procedural information, they cannot offer legal advice; specific legal questions regarding guardianship in Florida must be directed to an attorney.

When families face complex issues involving guardianship in Florida, working with an experienced Florida guardianship attorney helps prevent costly mistakes.

Do I Need to Hire a Florida Guardianship Attorney?

Yes—unless you fall into a narrow exception, Florida law generally requires guardians to be represented by an attorney. Under Florida Probate Rule 5.030, a guardian must be represented by an attorney of record.

This rule ensures that all filings, pleadings, and procedures are handled in accordance with Florida’s strict statutory standards.

The role of the Florida Guardianship Lawyer is to draft and file the guardianship petition, the initial guardianship plan, and mandatory annual reports.

Planning ahead with an attorney for guardianship near me can prevent costly disputes later.

Exception for Guardian Advocates

The primary exception applies to Guardian Advocates appointed to assist persons with developmental disabilities.

A Guardian Advocate may not be required to have legal counsel unless the court mandates it, or if they are managing property beyond receiving government benefits.

Emergency Temporary Guardianship (ETG)

Sometimes, waiting for the standard guardianship in Florida process (which can take weeks or months) puts the individual at immediate risk. In these cases, your Florida guardianship attorney can file for an Emergency Temporary Guardianship (ETG).

When is an ETG Appropriate?

A court may appoint an emergency temporary guardian if it finds that there is imminent danger that the physical or mental health or safety of the person will be seriously impaired, or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.

Duration: An ETG typically lasts for 90 days.
Extension: It can be extended for an additional 90 days if the emergency conditions still exist.
Powers: The powers granted are limited specifically to the emergency at hand (e.g., freezing a bank account to stop theft or consenting to life-saving surgery).

Once the emergency is stabilized, the standard process for legal guardianship in Florida continues to determine if a permanent guardian is needed.

The Guardianship Petition and Process

To facilitate the appointment of a guardian, the process begins by filing a guardianship petition (Petition to Determine Incapacity) with the court.

Such a petition asks the probate court to assess whether the person can still make decisions regarding their personal or financial affairs.

Once filed, notice of the petition must be provided to the subject of the guardianship and their relatives to ensure due process.

The Role of the Examining Committee

One of the most unique aspects of legal guardianship florida is the Examining Committee. Within five days of the petition being filed, the court appoints a three-member committee to evaluate the alleged incapacitated person.

Composition: One member must be a psychiatrist or other physician. The remaining two members can be psychologists, gerontologists, registered nurses, or social workers.
Evaluation: Each member interviews the person independently and files a written report with the court.
Findings: They must report whether the person has the capacity to exercise specific rights (voting, marrying, managing money, etc.).

If the majority of the committee finds that the person is not incapacitated, the court must dismiss the petition.

This is a critical safeguard where a Florida Guardianship Lawyer is essential to ensure the committee follows proper statutory procedures.

The court may also appoint a court visitor or a guardian ad litem to independently evaluate the best interests of the alleged incapacitated person.

The Guardianship Hearing and Court Decisions

After the assessments are complete, a formal guardianship proceeding takes place. During this guardianship hearing, the court finds whether the individual is totally or partially incapacitated based on clear and convincing evidence.

If the judge determines that guardianship in Florida is necessary, they will issue a court order and “Letters of Guardianship.”

These letters grant the legal guardian the authority to act. However, the court will always look for the least restrictive means to protect the person.

A knowledgeable lawyer can explore less restrictive options, such as powers of attorney, if guardianship is not necessary.

Types of Guardianship Cases

There are different types of guardianship cases in Florida, depending on the needs of the ward:

Plenary Guardianship: The guardian has full authority over the person and property. This is reserved for those who cannot make any decisions for themselves.
Limited Guardianship: The court allows the ward to retain some rights (such as the right to vote or determine their residence) while the guardian manages others.
Guardian Advocacy: A streamlined process for individuals with developmental disabilities.
Voluntary Guardianship: When a mentally competent adult requests a guardian to help manage their estate due to physical infirmity.

In all guardianship cases, the goal is to balance protection with autonomy.

Guardianship of Minors vs. Adults

While many people associate guardianship with the elderly, legal guardianship in Florida also applies to minors. However, the rules differ significantly depending on the age of the ward.

Guardianship of a Minor

Parents are the “natural guardians” of their children. However, a court-appointed guardian in Florida is required for a minor if:

Parents are deceased or incapacitated: If no will designates a guardian, the court must appoint one.
Significant Assets: If a minor receives a net settlement (e.g., from a lawsuit or inheritance) exceeding $15,000, Florida law requires a legal guardianship of the property. Note: Even parents must be appointed by the court to manage a settlement of this size for their own child.

Strict laws govern how these funds can be spent, prioritizing the child’s health, education, and maintenance.

Guardianship of an Adult

For adults, the focus is on “incapacity.” The court must strip rights from the adult before giving them to a guardian. The goal is to maximize the adult’s independence, whereas, for a minor, the goal is protection until they reach adulthood (age 18).

Contested Guardianship and Family Disputes

Guardianship proceedings are not always smooth. A “contested guardianship” occurs when family members, friends, or the alleged incapacitated person oppose the petition. Common reasons for disputes include:

Disagreement on Incapacity: The family believes Mom or Dad is still fine and does not need a guardian in Florida.
Who Should Serve: Siblings may fight over who gets to be the appointed guardian.
Bad Faith: Allegations that the petitioner is trying to control the senior’s money for their own benefit.

In these high-conflict situations, the court acts as the ultimate arbiter. A Florida guardianship attorney represents your interests, presents evidence, and cross-examines the Examining Committee members or opposing medical experts.

Managing Estate Assets and Financial Decisions

One of the most critical duties of a guardian is managing estate assets and making financial decisions. The guardian of the property must identify, collect, and safeguard the ward’s assets.

Guardians must keep the money and property of the child’s or ward’s estate separate from their own and maintain accurate financial records.

Key financial responsibilities include:

Using estate assets for the ward’s support and care.
Filing annual accountings with the court.
Ensuring government agencies are notified if the ward receives benefits.
Acting as a representative payee, which is appointed to manage income or benefits from government agencies for individuals unable to manage their benefits due to illness or disability.

Interested persons and other interested persons, such as family members or creditors, have the right to review these accountings to ensure the guardian is acting properly.

Costs and Attorney Fees in Guardianship Cases

A common question is: Who pays for all this?

In legal guardianship florida, the fees for the Florida Guardianship Lawyer, the Examining Committee, and the court costs are generally paid from the assets of the ward (the person being placed under guardianship).

Reasonable Fees: Florida Statute 744.108 allows the guardian and the attorney to receive a “reasonable fee” for their services.
Court Approval: You cannot simply write yourself a check. All fees must be petitioned for and approved by the court.
Bad Faith: If the court finds that the petition for guardianship was filed in “bad faith” (e.g., just to harass a relative), the court may order the petitioner to pay all the legal fees, not the ward.

Health Care and Personal Decisions

A Florida guardianship attorney will help you understand your powers regarding health care and personal decisions.

When the court grants authority over the person, the guardian is responsible for making health care decisions and medical decisions on behalf of the ward.

The surrogate decision-making process allows your health care provider to turn to another person (the guardian) to make medical decisions for you if you become incapacitated.

The guardian must consult with care providers and doctors to ensure the ward receives appropriate assistance and medical treatment.

Human Services and Support Agencies

Guardians often work alongside organizations, agencies, and human services departments to ensure the ward is cared for.

For example, Florida has its own Department of Children and Families and Department of Elder Affairs that function similarly to other state agencies.

These human services agencies assist vulnerable adults in striving for self-sufficiency and safety.

Common Myths About Guardianship in Florida

There are many misconceptions about legal guardianship in Florida. It is important to separate fact from fiction to understand the true impact of the appointment.

Myth: A guardian has total control immediately.
- Fact: A guardian’s powers are limited by the court order. For major actions, such as selling real estate or spending large sums of the ward’s money, the appointed guardian often requires specific court approval before acting.
Myth: Guardianship is always permanent.
- Fact: The guardianship typically ends when the individual dies, but courts may terminate the guardianship while the person is still alive to restore the person’s rights. If a ward recovers the ability to manage their own affairs, the court can restore their rights.
Myth: I can do it alone without a lawyer.
- Fact: Due to the complexity and risk of legal error, Florida law requires the guardian to be represented by an attorney (with very few exceptions). Attempting to navigate a guardianship proceeding alone can lead to dismissal of your petition.

Frequently Asked Questions (FAQ)

1. Can I choose who becomes the guardian? You can nominate a proposed guardian in your estate planning documents (such as a Pre-Need Guardian Declaration). However, the final decision lies with the judge. While the court gives weight to the family’s preference, the court may appoint a professional guardian if family members are disputing or deemed unsuitable.

2. What does a Guardian of the Person do? This guardian is responsible for the ward’s personal well-being. This includes determining where they live, overseeing their medical care, ensuring they receive proper education (if a minor) and social interaction, and making day-to-day personal decisions that the ward cannot make for themselves.

3. Is there a risk to the guardian? Yes, there is a risk of liability if the guardian mismanages funds or neglects the ward. This is why the appointment of a guardian involves background checks and mandatory training. The appointed guardian must act as a fiduciary, meaning they must always act in the ward’s best interest, never their own.

4. Can a guardianship be modified? Yes. If the ward’s condition improves, they can petition for restoration of rights to manage their own affairs. Conversely, if a guardian is not performing their duties, other persons or family members can petition for the guardian’s removal.

Additional Information on Ending a Guardianship

Legal guardianship in Florida is not always permanent. If a ward regains capacity, a suggestion of capacity can be filed. The judge will review the evidence and decide if the rights should be restored.

Additional information regarding procedures for restoration can be found by consulting a Florida Guardianship Lawyer.

Key Takeaways

Guardianship legal representation is generally mandatory in Florida.
A guardian in Florida is a fiduciary with strict duties regarding estate assets.
The court favors the least restrictive alternative.
Other persons and interested persons may intervene if a guardian is not acting correctly.

Contact Lorenzo Law for Guardianship Legal Representation

Navigating the legal process of guardianship in Florida requires careful planning, thorough documentation, and an understanding of the state’s complex guardianship statutes.

Whether you are seeking guardianship over a minor, incapacitated adult, or developmentally disabled loved one, you need a legal advocate who understands the intricacies of Florida guardianship law.

At Lorenzo Law, our experienced Florida guardianship attorneys are here to walk you through every step of the process—from filing the guardianship petition to the final discharge.

If you are searching for a “guardianship lawyer near me” or a “guardian attorney near me,” contact our office today for direct guidance.

A knowledgeable Florida guardianship lawyer can explain your rights, responsibilities, and options when navigating guardianship in Florida.

We handle guardianship cases throughout Florida, including Miami-Dade, Broward, Palm Beach, Orange, Hillsborough, and Duval Counties. Florida, including Miami-Dade, Broward, Palm Beach, Orange, Hillsborough, and Duval Counties.

Would you like to schedule a consultation to discuss whether a guardianship petition is the right step for your family?

Contact me now if you need help with guardianship in Florida, and a dedicated Florida guardianship lawyer will guide you through every step with precision and urgency.