Guardianship is one of the most significant proceedings handled by Florida courts because it can affect an individual's ability to make decisions about finances, health care, residence, contracts, and other important areas of life.
Florida law therefore emphasizes using the least restrictive appropriate alternative and allowing an individual to retain as much decision-making authority as possible. Florida's Legislature expressly states that alternatives to guardianship and less restrictive forms of assistance should be explored before a plenary guardian is appointed.
At Gold Legacy Law, PLLC, I help Florida families navigate adult guardianships, minor guardianships, guardian advocacy, contested guardianships, emergency proceedings, and ongoing guardianship administration. Our guardianship practice serves Miami Lakes, Miami-Dade County, Broward County, Palm Beach County, and families throughout Florida.
Below are answers to 50 common questions about Florida guardianship.
Florida Guardianship Basics
1. What is guardianship in Florida?
Guardianship is a court-supervised legal relationship in which a court gives a guardian authority to exercise certain rights or make certain decisions for another person, known as the ward.
Florida guardianship law is primarily contained in Chapter 744 of the Florida Statutes.
2. Who may need a guardian in Florida?
Guardianship may be considered for an adult who cannot safely exercise some or all important legal rights, for a minor when a guardian is legally required, or in other circumstances authorized by Florida law.
The need for guardianship should always be evaluated against available less restrictive alternatives.
3. Does having dementia automatically mean someone needs a guardian?
No.
A medical diagnosis by itself does not automatically determine legal incapacity. The issue is whether the person can exercise particular legal rights and whether less restrictive alternatives adequately address the person's needs.
4. Is guardianship supposed to be a last resort in Florida?
Florida law strongly favors less restrictive alternatives.
The Legislature specifically states that alternatives to guardianship should be explored and that guardianship should interfere with an individual's legal capacity only to the extent necessary.
How to Avoid Guardianship in Florida: The Essential Estate Planning Guide
5. What is the difference between a guardian and a power of attorney?
A power of attorney is created voluntarily by someone who has the legal capacity to authorize another person to act for them. A guardian, in contrast, is appointed and supervised by a court.
A valid power of attorney may sometimes provide a less restrictive alternative to guardianship.
Power of Attorney vs. Guardian in Florida
Adult Guardianship in Florida
6. How do you start an adult guardianship in Florida?
An adult guardianship commonly begins with a petition to determine incapacity, together with the appropriate request concerning appointment of a guardian.
The incapacity petition must identify factual reasons the petitioner believes the person is incapacitated and identify the rights the petitioner believes the person cannot exercise. Florida law now also requires consideration of whether the person uses assistance, including supported decision-making, and why that assistance is insufficient.
7. Who can file a petition to determine incapacity?
Florida Statute § 744.3201 provides that an adult person may execute a petition to determine another person's incapacity, subject to the statute's requirements.
8. Does the court simply accept the family's opinion that someone is incapacitated?
No.
An incapacity determination is a judicial process with significant due-process protections because important civil rights may be affected. Florida law establishes procedures for evaluating incapacity rather than allowing relatives simply to declare someone incapable.
9. Is there a medical evaluation during an incapacity proceeding?
Yes.
Florida's incapacity procedure includes evaluation by an examining committee. The committee assists the court in determining which rights, if any, the alleged incapacitated person is unable to exercise.
10. Does the person accused of being incapacitated have an attorney?
Florida guardianship law provides substantial due-process protections, including representation by counsel during incapacity proceedings.
That protection is important because an incapacity determination can restrict significant legal rights.
11. Does the alleged incapacitated person get to attend the hearing?
The individual has important rights in the proceeding, and Florida guardianship law is designed to allow the person meaningful participation consistent with the governing statutes and court procedures.
Guardianship is not simply a dispute among the relatives. The rights of the individual at the center of the case are paramount.
12. Does the court have to find someone completely incapacitated?
No.
Florida recognizes limited guardianship specifically so that people who can still exercise some rights do not unnecessarily lose all decision-making authority. The appointment order must preserve rights consistent with the individual's abilities.
Limited and Plenary Guardianship
13. What is a limited guardianship?
A limited guardianship gives the guardian authority only over specified rights the court determines the individual cannot exercise.
The ward retains all rights that have not been specifically removed and delegated.
14. What is a plenary guardianship?
A plenary guardianship grants the guardian all delegable rights that the court has removed from the incapacitated person.
Because plenary guardianship is highly restrictive, Florida law requires the court to consider the least restrictive appropriate alternative.
15. What is a guardian of the person?
A guardian of the person may receive authority over specified personal matters, such as residence, health care, or other personal decisions, depending on the rights removed and delegated by the court.
The guardian's authority comes from the court order and letters of guardianship—not simply from being a family member.
16. What is a guardian of the property?
A guardian of the property manages property and financial matters within the authority given by the court.
This can involve bank accounts, investments, income, expenses, real estate, financial records, and other property belonging to the ward.
17. Can one person be guardian of the person and another guardian of the property?
Yes.
Depending on the circumstances, responsibilities may be divided rather than placing every responsibility with one person.
18. Can Florida appoint more than one guardian?
Yes. Co-guardians can be appointed in appropriate circumstances.
Whether co-guardianship makes sense depends heavily on whether the individuals can cooperate. Shared authority can provide checks and balances, but disagreement between co-guardians can also make administration more difficult.
Can You Have More Than One Guardian in Florida?
Choosing a Florida Guardian
19. Does the closest family member automatically become guardian?
No.
Family relationship is relevant, but the court ultimately determines who is legally qualified and appropriate to serve.
Florida law permits the court to consider evidence regarding who should receive preference and requires the appointment to remain consistent with the ward's welfare, safety, and least restrictive needs.
20. Can family members fight over who becomes guardian?
Yes.
Adult children, siblings, spouses, and other relatives may disagree about whether guardianship is necessary or who should serve.
The judge ultimately decides based on Florida law and the circumstances affecting the proposed ward.
Can Family Members Fight Over Guardianship in Florida?
21. What does a court consider when selecting a guardian?
The court can consider qualifications, ability to perform the responsibilities, relationship with the ward, potential conflicts, the ward's preferences where appropriate, existing planning documents, and other circumstances relevant to the ward's welfare.
The proceeding is not simply a contest over which family member is "closest."
22. Can someone choose their guardian before becoming incapacitated?
Yes.
Florida recognizes a preneed guardian designation, allowing an individual to nominate the person they would prefer to serve if guardianship later becomes necessary.
This does not eliminate the court's oversight, but it gives the court important evidence of the individual's own wishes.
23. Can parents name a guardian for their minor children?
Yes. Parents can plan in advance for the care of minor children, including through estate-planning documents and Florida's preneed guardian procedures for minors.
Planning for Guardianship of a Minor Child in Florida
Guardian Advocacy for Adults With Developmental Disabilities
24. What is guardian advocacy in Florida?
Guardian advocacy is a Florida procedure that can allow a court to appoint a guardian advocate for a person with a developmental disability without first adjudicating that person incapacitated.
The court may delegate only the decision-making tasks the person lacks the ability to exercise.
25. Is guardian advocacy the same as adult guardianship?
No.
Traditional adult guardianship commonly involves a Chapter 744 incapacity proceeding. Guardian advocacy under Florida Statute § 393.12 can be established without an adjudication of incapacity for a qualifying person with a developmental disability.
26. Who may qualify for guardian advocacy?
Guardian advocacy is specifically tied to individuals with developmental disabilities as addressed by Chapter 393, not simply anyone who needs help making decisions.
The court evaluates the individual's unique abilities and needs and should delegate only those decision-making tasks the person cannot perform.
27. Does a developmental disability automatically mean someone needs a guardian advocate?
No.
Florida law expressly provides that a person with a developmental disability may not be presumed incapacitated solely because of the disability or because the person receives services.
28. What happens when a child with a developmental disability turns 18?
Turning 18 generally means a parent no longer automatically has authority to make decisions simply because they are the parent.
Families should evaluate the adult child's actual abilities and determine whether supported decision-making, powers of attorney where legally possible, guardian advocacy, guardianship, or another arrangement is appropriate.
Planning should ideally begin before the eighteenth birthday rather than waiting for an emergency.
Guardianship of Minors
29. When does a minor need a guardian in Florida?
A guardian may be necessary when a minor needs someone legally authorized to act for the child's person or property under circumstances governed by Florida law.
Unlike an adult guardianship, a minor does not need to be adjudicated incapacitated before a guardian is appointed under § 744.3021.
30. When is a guardian of a minor's property required?
One common situation involves money or property belonging to a minor.
For settlements, Florida Statute § 744.387 provides that a legal guardianship is required when the net settlement to the minor exceeds $15,000.
31. Can parents automatically control a large settlement belonging to their child?
Not necessarily.
Florida places restrictions on a parent's ability to receive and manage substantial settlement proceeds belonging to a minor. When the statutory threshold is exceeded, a guardianship of the property is required.
32. Does minor guardianship end when the child turns 18?
A guardianship based solely on minority ordinarily changes when the child reaches adulthood, although final accounting, transfer, discharge, or other court procedures may still be necessary.
If the adult has separate decision-making limitations, any need for guardian advocacy or adult guardianship must be evaluated independently.
Emergency Guardianship
33. What is an emergency temporary guardian in Florida?
An emergency temporary guardian, or ETG, can be appointed when immediate protection is necessary while an incapacity matter is pending.
The court must specifically find imminent danger that the person's health or safety will be seriously impaired or that property is in danger of being wasted, misappropriated, or lost without immediate action.
34. How quickly can an emergency guardian be appointed?
Emergency guardianship is designed for urgent circumstances, but it still contains due-process protections.
Florida law generally requires notice of the ETG petition and hearing at least 24 hours beforehand unless the petitioner demonstrates that providing the notice would cause substantial harm.
35. How long does an emergency temporary guardianship last?
Under current Florida law, an ETG's authority generally expires90 days after appointment or when a guardian is appointed, whichever occurs first. The court may extend it for an additional 90 days upon the required showing that emergency conditions continue.
36. Can an emergency guardian do anything they want?
No.
The court order must specifically state the emergency temporary guardian's powers and duties. An emergency appointment is not unlimited authority.
Powers and Duties of a Florida Guardian
37. What duties does a Florida guardian have?
A guardian is afiduciary and must act within the authority granted by the court and Florida law.
The guardian must act in good faith and cannot act contrary to the ward's best interests. Florida law also imposes reporting, recordkeeping, financial, and other duties depending on the type of guardianship.
38. Does a guardian have to file reports with the court?
Yes.
Chapter 744 includes requirements for initial reports and ongoing annual reporting. Depending on the guardianship, this may include a guardianship plan, inventory, annual plan, and annual accounting.
39. Does a guardian have to keep financial records?
Absolutely.
A guardian managing property should maintain organized records showing receipts, expenditures, assets, transactions, and other financial activity. Annual accountings may be required as part of the court's continuing supervision.
40. Can a guardian spend the ward's money?
A guardian may use the ward's property only within the authority provided by law and court order and for appropriate purposes relating to the ward.
Control of an account does not turn the ward's money into the guardian's personal money.
41. Can a guardian sell the ward's home?
Potentially, but a guardian should not assume unrestricted authority to sell real property.
Chapter 744 identifies numerous transactions for which a guardian may need court approval, and the proper procedure depends on the property and circumstances.
42. Can a guardian make medical decisions?
A guardian may receive authority to make health care decisions if that right has been legally removed from the ward and delegated to the guardian.
The court must also consider valid health care advance directives that existed before incapacity and specify the respective authority of the guardian and health care surrogate.
43. Does a guardian control every part of the ward's life?
No.
A guardian may exercise only authority legally granted to the guardian. Florida law also protects numerous rights of people determined incapacitated, and some extraordinary decisions require specific additional court authorization.
Removing a Guardian and Contested Guardianships
44. Can a Florida guardian be removed?
Yes.
Florida law provides procedures and grounds for removing a guardian. Chapter 744 specifically addresses reasons for removal, proceedings for removal, appointment of a successor, and accounting following removal.
45. Why might a guardian be removed?
The answer depends on the specific facts and statutory grounds.
Problems involving misuse of property, failure to comply with reporting obligations, conflicts, failure to perform required duties, or conduct inconsistent with the ward's interests may require court intervention.
46. Can a family member challenge what a guardian is doing?
Potentially.
An interested person may have options to bring concerns to the guardianship court when the guardian is allegedly acting outside their authority or failing to protect the ward.
The appropriate remedy depends on the conduct and the person's legal interest in the proceeding.
Can Family Members Fight Over Guardianship in Florida?
Ending Guardianship and Restoring Rights
47. Can a person ever get their rights back after being declared incapacitated?
Yes.
Florida law contains a specific restoration to capacity procedure. The ward or another interested person may file a suggestion of capacity seeking restoration of some or all rights that were previously removed.
48. Does restoration have to be all or nothing?
No.
A Florida court may restore some or all of the rights that were removed. If only some rights are restored, the guardianship can continue in a more limited form.
Avoiding Guardianship Through Estate Planning
49. How can I reduce the likelihood that my family will need guardianship for me?
Planning before incapacity can make a tremendous difference.
Depending on your situation, a coordinated plan may include a durable power of attorney, designation of health care surrogate, living will, revocable living trust, and preneed guardian designation.
Florida law specifically requires courts to consider advance directives and emphasizes less restrictive alternatives to guardianship.
How to Avoid Guardianship in Florida
50. Do I need a Florida guardianship attorney?
Guardianship affects fundamental personal and property rights and creates continuing responsibilities for the person appointed as guardian.
An attorney can help determine whether guardianship is actually necessary, evaluate alternatives, prepare and prosecute the appropriate petition, address contested appointments, assist with emergency proceedings, and help guardians comply with ongoing court requirements.
At Gold Legacy Law, PLLC, I approach guardianship with two objectives: protecting the person who needs assistance while preserving as much independence and decision-making authority as the law and circumstances allow.
Need Help With a Florida Guardianship?
Families usually contact a guardianship attorney because something has changed.
An aging parent may suddenly be unable to manage finances. A family may discover suspicious transactions. Adult children may disagree about who should care for a parent. Parents of a child with developmental disabilities may realize that the child's eighteenth birthday is approaching. A minor may receive an inheritance or settlement that requires court-supervised management.
These situations are very different from one another, which is why the first question should not simply be “How do we get a guardianship?”
The better question is:
“What legal authority does this person actually need, and what is the least restrictive way to provide it?”
Florida law itself embraces that approach.
At Gold Legacy Law, PLLC, I help families with adult guardianships, limited and plenary guardianships, minor guardianships, guardian advocacy, emergency temporary guardianships, contested appointments, guardian administration, annual reporting, removal proceedings, and incapacity planning. The firm's existing Guardianship practice page likewise identifies adult, minor, emergency, guardian-advocacy, and compliance matters as part of its guardianship practice.
Florida Guardianship Attorney — Gold Legacy Law, PLLC
Our office serves clients in Miami Lakes, Miami-Dade County, Broward County, Palm Beach County, and throughout Florida.
Contact Gold Legacy Law, PLLC at (305) 556-5209 to schedule a Florida guardianship consultation.