A “Guardian” is a person or corporation who has been appointed by the court to act on behalf of an incapacitated person, property, or both. The person for whom a Guardian has been appointed is a “ward” of the court. Current Florida Law permits the removal of any, some, or all of the following rights of an individual adjudicated incapacitated:
- to marry
- to vote
- to have a drivers license
- to travel
- to seek or retain employment
- to contract
- to sue or defend lawsuits
- to personally apply for government benefits
- to manage property or make any gift or disposition of property
- to determine residence
- to consent to medical treatment
- to make decisions about the social aspects of life
Only the last seven rights may be delegated to the Guardian.
The Guardian’s duties include the filing of an Initial Guardianship Report within 60 days of his/her appointment. The Initial Guardianship Report consists of an Inventory of assets and income, as well as a Guardianship Plan which describes the medical, mental, personal and social services which the Guardian intends to have provided to the ward during the following year.
The Guardianship Plan must also include anticipated placement for the ward’s residence and any physical and mental examinations which will be performed. The Guardian is also required to file Annual Guardianship Reports consisting of a Guardianship Plan and a Financial Return. Many disbursements, other than for normal living expenses, are prohibited without specific court approval.
Some examples of items for which disbursements must not be made without prior court approval include repairs to real estate; settlement of a past debt; prepayment of funeral expenses; making of gifts; etc. A Guardian also must obtain prior court approval to enter into a lease or contract on behalf of the ward; to abandon property; borrow money; prosecute claims; continue a business; etc.
Whenever a Guardian who has been delegated the right to manage the ward’s property has a doubt as to a disbursement or an action, he/she should consult with their attorney. A Guardianship is a court proceeding in which the rights and property of an incapacitated person known as a Ward are exercised by another person known as the Guardian.
Any person may file a Petition for Incapacity which results in the Court appointing a committee of three persons, usually two physicians and a lay person to examine the person, determine if the alleged Ward is incapacitated and report their findings to the Court. The Judge will then determine whether the alleged Ward is in fact incapacitated, to what extent and appoint a Guardian to care for the person and/or their property.
The appointment of a Guardian may result in the Ward’s loss of control of his or her income, financial assets, and other property, the right to decide where to live, the right to drive, vote, marry and make other decisions pertaining to their life. A Guardian is accountable to the Court, may have to undergo training and post a bond, and will be required to file annual accountings to be approved by the Court. The Ward may have the Guardianship terminated or modified if full or partial capacity is restored.