Florida Guardianship Options

Guardianship in Florida Is Not One Size Fits All: A Southwest Florida Guide to Your Options

Sarasota, Charlotte, Manatee, and DeSoto counties have some of the oldest populations in the country, and with that comes a steady stream of capacity questions. A parent's dementia progresses faster than anyone expected. An adult child with autism turns 18 and the school district stops taking calls from mom. A grandchild receives a personal injury settlement and the carrier will not cut the check.

Families often walk into our office asking for "guardianship" as though it were a single thing. It is not. Chapter 744 of the Florida Statutes creates a range of tools, some sweeping and some very narrow, and choosing the wrong one costs money, time, and sometimes a person's independence.

Plenary guardianship of an adult

A plenary guardian exercises all delegable legal rights and powers of the ward (also called alleged incapacity person, or AIP) after the court finds the person lacks capacity to perform all of the tasks necessary to care for his or her person or property, section 744.102(9)(b), Fla. Stat.

Limited guardianship

A limited guardian exercises only the rights and powers specifically designated by court order, entered after the court finds the ward lacks capacity to do some but not all of those tasks, section 744.102(9)(a), Fla. Stat.

Guardian of the person, guardian of the property, or both

These are separate offices and can be held by separate people. A guardian of the person handles residence, medical care, and daily welfare, section 744.361, Fla. Stat. A guardian of the property marshals assets, files a verified inventory, section 744.365, and must obtain court approval before major acts such as selling real property or settling claims, section 744.441.

Emergency temporary guardianship

Where there is imminent danger to a person's health, or property is in danger of being wasted, misappropriated, or lost, the court may appoint an emergency temporary guardian once the incapacity petition is filed, section 744.3031, Fla. Stat. That authority lasts 90 days and may be extended another 90. We see these most often in exploitation cases and after hospital discharges where no safe placement exists.

Guardianship of a minor, especially of the property

Parents are natural guardians of their children, section 744.301(1), Fla. Stat., and may collect and settle a child's claim without any court appointment when the amount does not exceed $15,000, section 744.301(2). Above that threshold a guardian of the property is generally required, section 744.3021, and settlement requires court approval under section 744.387. The court may appoint a guardian ad litem when the gross settlement exceeds $15,000 and must appoint one when it exceeds $50,000, section 744.3025, Fla. Stat.

Guardian advocacy: the option most families should ask about

For a person with a developmental disability as defined in section 393.063, Florida allows appointment of a guardian advocate under section 393.12, Fla. Stat., without any adjudication of incapacity. There is no examining committee, the proceeding is faster and less expensive, the person retains every right not specifically transferred, and the person is entitled to representation.

The obligations do not end at appointment

Family guardians must complete required education, section 744.3145, and post bond when ordered, section 744.351. Guardians file an initial plan and inventory, sections 744.362 and 744.365, then an annual guardianship plan and accounting, sections 744.3675 and 744.3678, which the clerk audits under section 744.368. Compensation for guardians and their attorneys is governed by section 744.108. Capacity can also improve, and a ward or anyone acting on the ward's behalf may seek restoration of rights under section 744.464.