Understanding the Different Types of Guardianship in Florida

The many types of Guardianship in Florida all come with their distinct purposes, and it’s important to know how they work to prepare for all of life’s uncertainties that may call for their existence.

An unsettling truth we all face is the possibility that an emergency may interfere with our daily lives at any point. And, while it’s difficult to confront these thoughts constantly, it is very important to be proactive in our understanding of what can happen in these scenarios, particularly for our families and friends. The types of Guardianship in Florida range widely to cover nearly all of these “what-ifs”, as well as other situations that don’t necessarily relate to loss, or death.

A guardian is a surrogate decision-maker appointed by a court to help make financial or personal decisions for an individual. Florida law requires the court to appoint a guardian for a minor in the event that their parents die, or become incapacitated. State law also allows for voluntary/involuntary guardianship. Voluntary guardianship is granted in situations where an adult is physically or mentally incapable of making certain decisions, but they voluntarily petition for the appointment. Involuntary guardianship is when someone else makes the decision to appoint a guardian through the court.

In most circumstances, the court decides what rights a guardian may have over an individual. Whether it is a minor who can’t make decisions for themselves, or an adult with a disability, it is the court’s duty to appoint a guardian to protect the individual’s rights. All minor and adult guardianships are subject to court oversight.

Various types of Guardianships exist barring certain circumstances that may call for specific reasons to request Guardianship in Florida. These can include:

If the court believes an individual may be in immediate danger, or at risk of having property wasted or lost, an Emergency Guardianship will be granted. The court specifically lists the duties of the guardian in a written order until they are potentially granted permanent guardianship, usually handled in a small hearing.

This occurs when parents or other legal guardians temporarily allow someone else to care for their child or loved one. This isn’t always a situation where there is concern for an individual’s well-being. It can be granted to an individual’s family member or loved one if the parents are out of the country and can’t handle tasks such as medical care or school enrollment. This temporary guardianship usually continues until the court decides whether to grant permanent guardianship, name someone else, or restore the individual’s rights.

In instances where an individual is only partially incapacitated, and can only make some, but not all, of their own decisions, a Limited Guardianship may be granted. Guardians appointed in this way lose some but not all of their rights, and can only take actions appointed by the court. However, they will keep all rights not taken by a court order.

When an individual has been deemed totally incapacitated, they are then placed under what is known as Full or Plenary Guardianship. It is the most restrictive type and few people require it, as individuals under it cannot retain any rights.

If an individual has a developmental disability or has been deemed by a psychiatrist as incompetent to consent to treatment, a Guardian Advocate is often appointed. The Guardian Advocate is then able to obtain legal authority to act on behalf of the individual who may only be partially able to make decisions on their own. However, the individual is not required to be declared as incapacitated. Florida law requires Guardian Advocates to allow the person to participate in decisions affecting their life, and they are mandated to notify the court if the person under guardianship has retained some capacity.

A guardian may not be granted to an individual who simply makes poor decisions for themselves – they must be proven to be incapacitated in some manner. A court-appointed exam will assess a person’s physical and mental capability to determine whether or not they require legal guardianship. In some situations, the court has the ability to rule a child as emancipated, meaning they are legally treated as an adult. However, if this isn’t the case, the court will appoint a guardian who assumes the responsibilities of a parent until the child reaches 18 years old.

Our team at Walser Law Firm is here to help you establish guardianship or handle matters regarding a legal relationship. We understand that these decisions come with their uncertainties and legal ramifications, and our job is to ensure that you are given the proper guidance and care through a difficult situation. We have been assisting individuals through this process for over 30 years, and pride ourselves on protecting the rights of guardians/wards, and helping those responsible for others’ well-being through every step of the process. Contact us to schedule a consultation with a guardianship attorney, or for any general questions, so we can strategize a solution to your specific circumstances.

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