Guardianship Basics

What Is Guardianship?  

When a person is no longer has the capacity to care for themselves, a guardian is appointed by the court to exercise rights on their behalf.  At that time, the incapacitated person becomes a “Ward” of the State of Florida, and the newly appointed guardian now has the responsibility to care for the Ward. 

Who Can Become a Guardian? 

In Florida, a family member, friend, professional guardian, or institution can become guardian.  There are many factors that determine who has the priority to serve as the guardian and oftentimes the process of appointing a guardian can become messy for the family.   

To qualify as a guardian, you must meet the following requirements: 

  • Be a Florida resident  
  • Be at least 18 years of age 
  • Free of any felony convictions, including quasi-convictions such as “adjudication withheld” 
  • Be mentally and physically capable of carrying out the duties of a guardian 

What is the Difference Between Guardianship Power of Attorney? 

The guardianship court must allow for the “least restrictive manner” for which the Ward is to be cared for.  While a guardian or a power of attorney both are means of ensuring assistance for an incapacitated person, a power of attorney is less restrictive as it does not take away any rights of the person signing the power of attorney.  Also, the power of attorney must be executed prior to a person becoming incapacitated.  The term “Durable” in a “Durable Power of Attorney” means that the power of attorney survives even after someone becomes incapacitated.  Creating a power of attorney after someone’s mental capacity has declined is not a good idea and, in most cases, able to be challenged on the ground that it is invalid because the person signing was not of sound mind to create the power of attorney.   

A guardianship is created after a person is determined incapacitated through the court.  The process of being determined incapacitated takes away some or all of a Ward’s rights and is deemed to be much more restrictive than having a power of attorney. 

What Does a Guardian Do? 

The responsibilities of a guardian vary depending on the court’s determination of what is necessary, but they may include: 

  • Managing the property of the ward 
  • Ensuring the ward receives all necessary care and services, including medical care and services 
  • Determining the residence of the ward 
  • Filing annual plans regarding care with the court 
  • And much, much more 

Have More Questions About Guardianship? 

At Patriot Legal Group we want to help guide you through the guardianship process.  Contact us to schedule your free consultation with one of our attorneys.