If your disabled child is about to turn 18 and is unable to manage their own affairs, it is critical to understand what steps must be taken to ensure they remain protected under Florida law.
Once a child turns 18, parents no longer have the legal authority to make decisions on their behalf. In these situations, a guardianship may be necessary.
The process involves two primary steps: determining incapacity and appointing a legal guardian.
Step 1: Petition to Determine Incapacity
The first step is filing a petition to determine incapacity.
This petition must include detailed information about your child and identify which rights they are unable to exercise. These rights are outlined under Florida Statute 744.3215 and may include the ability to make medical decisions, manage finances, or enter into contracts.
Importantly, the attorney filing the petition does not represent your child. The court will appoint an attorney to represent your child's interests.
Within five days of filing the petition, the court appoints an examining committee made up of three qualified professionals. This committee typically includes one psychiatrist or physician, along with two additional qualified members, as required under Florida Statute 744.331.
Each examiner evaluates your child and submits a report within 15 days. Based on these reports, the court will schedule a hearing to determine whether your child is legally incapacitated.
If the court determines incapacity, it will issue an order formally recognizing that your child is unable to exercise certain rights.
Step 2: Appointment of a Guardian
Once incapacity is established, the next step is appointing a guardian.
A petition for appointment must be filed, outlining why the proposed guardian is qualified to serve. Courts typically give preference to parents, provided they meet the legal requirements.
The petition must include information about the guardian's relationship to the individual, background, and ability to carry out the responsibilities of the role. Additional requirements are set forth in Florida Statute 744.334.
The court may appoint a guardian of the person, a guardian of the property, or both. When both roles are assigned, it is referred to as a plenary guardianship.
Requirements to Serve as Guardian
To serve as a guardian in Florida, you must:
- Take an oath to properly perform your duties under Florida Statute 744.36.
- Complete an 8-hour guardianship education course under Florida Statute 744.3145
- Submit to fingerprinting and a background check
Certain individuals are disqualified from serving as guardians, including those with felony convictions.
Ongoing Responsibilities of a Guardian
Once appointed, guardians have ongoing legal obligations.
Within 60 days, the guardian must file an initial inventory listing all assets of the ward. An initial guardianship plan must also be submitted, outlining medical care, living arrangements, and overall well-being.
On an annual basis, guardians must file:
- An annual guardianship plan
- A physician's report
- An annual accounting of assets, unless waived in limited circumstances
These requirements ensure continued court oversight and protection of the individual.
Why Proper Planning Is Critical
Guardianship proceedings are highly structured and must be handled carefully. Errors in the process can lead to delays, additional costs, or even disputes regarding who should serve as guardian.
In many cases, disagreements arise among family members regarding control, authority, and decision-making, issues that frequently appear in probate and guardianship litigation.
Planning ahead and working with an experienced attorney can help avoid these complications.
Final Thoughts
If your child is approaching 18 and may require continued assistance, it is important to begin planning early.
Guardianship is not just a legal requirement, it is a critical step in ensuring your child's safety, care, and financial protection.
At Gold Legacy Law, PLLC, I assist families throughout Miami Lakes and South Florida in navigating the guardianship process with clarity and confidence.
If you have questions about guardianship or need assistance, I encourage you to schedule a consultation to discuss your options.
FAQ Section
What happens when a disabled child turns 18 in Florida?
When a disabled child turns 18, parents no longer automatically have legal authority to make medical, financial, or other important decisions for them. If the child is unable to manage their own affairs, a guardianship proceeding may be necessary.
Do parents automatically become guardians at age 18 in Florida?
No. Once a child turns 18, parents must go through the legal guardianship process if continued authority is needed. Florida courts generally give preference to qualified parents, but court approval is still required.
What is the first step in seeking guardianship in Florida?
The first step is filing a petition to determine incapacity. The court then appoints an attorney for the alleged incapacitated person and an examining committee to evaluate capacity.
Who evaluates whether my child is incapacitated?
The court appoints a three-member examining committee. This usually includes one psychiatrist or physician and two other qualified professionals who submit reports to the court.
What is a plenary guardian in Florida?
A plenary guardian is someone appointed by the court to exercise both personal and property rights on behalf of an incapacitated individual.
Do guardians in Florida have ongoing responsibilities?
Yes. Guardians may need to file an initial inventory, an initial guardianship plan, annual plans, and annual accountings, depending on the circumstances of the case.
Can someone with a felony conviction become a guardian in Florida?
Generally, no. Certain criminal history issues, including felony convictions, can disqualify a person from serving as a guardian.
Do guardians have to take a course in Florida?
Yes. In most cases, guardians must complete an 8-hour guardianship education course and satisfy other court requirements, including a background check.
Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship between you and Gold Legacy Law. For legal advice regarding your personal situation, please contact our office to schedule a consultation.
