Guardianship FAQs

1. Do we actually need a guardianship, or is there another way?

This is the first question we ask you, not the other way around. Florida courts cannot appoint a guardian if a less restrictive alternative will meet the person's needs, section 744.331(6)(b), Florida Statutes.

If your loved one still has capacity, a durable power of attorney under chapter 709 and a health care surrogate designation under chapter 765 usually accomplish everything a guardianship would, at a fraction of the cost. If they have already lost capacity, it is too late to sign those documents. The dividing line is capacity at the moment of signing, which is why the answer to this question often depends on how quickly you call someone.

2. What does it cost, and who pays for it?

There are three cost buckets. The court's own costs include filing fees and the examining committee, whose three members each receive a fee set by the court and taxed as costs, section 744.331(7), Fla. Stat. Second, your attorney's fees for the petition and the appointment process. Third, ongoing costs once the guardianship is open: annual accountings, bond premiums, and periodic court approvals.

Generally these are paid from the ward's assets rather than out of the family's pocket, with the court approving guardian and attorney compensation as reasonable under section 744.108. If the alleged incapacitated person is indigent, the county covers the examining committee. If a petition is filed in bad faith, costs can be shifted to the petitioner.

3. Will my mother lose the right to vote, drive, or get married?

Possibly, and this is where limited guardianship matters. Section 744.3215 sorts a ward's rights into categories. Some rights are always retained. Some may be removed and transferred to a guardian, including the rights to contract, manage property, decide residence, and consent to medical treatment. Others may be removed but never given to anyone else, including the right to vote.

4. Can we keep her in her own home?

Often yes. If the right to determine residence has been removed and transferred, the guardian makes that decision, subject to the ward's best interests and the annual plan filed with the court.

There is an important limit. A guardian cannot place a ward in certain facilities or take certain drastic actions without first obtaining specific court authority, section 744.3215(4), Fla. Stat.

5. I live in Ohio. Can I serve as guardian for my father in Florida?

Yes, if you are related. Florida generally bars nonresidents from serving unless they are close relatives of the ward by blood, marriage, or adoption, section 744.309(3), Fla. Stat. Adult children qualify. A devoted family friend in Michigan does not.

6. Does the guardian get paid, and do we have to hire a lawyer?

Guardians, including family members, may receive reasonable compensation from the ward's assets with court approval under section 744.108. Many family guardians waive it. Professional guardians, who must be registered with the state's Office of Public and Professional Guardians and meet training, screening, and bonding requirements, always charge.

As for counsel, yes. Under Florida Probate Rule 5.030, a guardian must be represented by an attorney, with narrow exceptions.

7. What happens to Social Security, Medicaid, and VA benefits?

This is the question most often answered incorrectly, and it matters enormously in a region with this many benefit recipients.

A Florida guardianship order does not, by itself, give you authority over Social Security benefits. The Social Security Administration recognizes its own representative payee, and it does not honor powers of attorney at all. The same separation applies to the VA fiduciary program. You may need both a guardianship and a payee or fiduciary appointment, and they are separate applications on separate timelines.

8. My son turns 18 in a few months. Is guardianship automatic?

No. On the eighteenth birthday, your legal authority as a parent ends regardless of your child's abilities. Schools, doctors, and banks are required to treat your child as an adult.

For a young adult with a developmental disability such as autism, Down syndrome, cerebral palsy, or an intellectual disability, Florida offers guardian advocacy under section 393.12, which requires no adjudication of incapacity and no examining committee. It is faster and cheaper than full guardianship and preserves every right not specifically transferred.

9. What if my brother objects?

He can. Interested persons may object to the petition, to who serves, or to specific requested powers, and a contested guardianship looks like litigation because it is litigation. Depositions, independent examinations, and multiple hearings are all possible, and a case that would have closed in two months can run six or more.

Two things help. First, front loading the conversation with family before filing, so objections surface early rather than at the hearing. Second, choosing a neutral professional guardian when siblings genuinely cannot work together. Spending money on a neutral is almost always cheaper than spending it on a fight.

10. Is this permanent, and is it public?

Not necessarily permanent. If capacity improves, a suggestion of capacity may be filed under section 744.464, Fla. Stat., and rights can be restored. We have handled restorations after stroke recovery and after a medication change resolved what looked like dementia. Guardians can also resign or be removed, and the guardianship ends at the ward's death, though the accounting obligations do not end that day.

As for privacy, guardianship reports including annual plans and accountings are not open to general public inspection, section 744.3701, Fla. Stat., and medical information in the file is protected.