When an aging parent, spouse, adult child, or other loved one can no longer safely manage important personal, medical, or financial decisions, family members may wonder how to protect him or her. Adult guardianship is one legal option that may provide protection and assistance when an adult cannot make certain decisions independently.

 

However, establishing guardianship is a significant legal step. A Florida court may remove specific rights from an adult and give another person the authority to exercise those rights on his or her behalf. Florida law emphasizes using the least restrictive appropriate alternative.

 

At Mara Law, P.A., Attorney Wendy A. Mara and her legal team help families understand the Florida guardianship process and determine what options may be appropriate for a loved one. The firm assists families with guardianship, elder law, estate planning, probate, and related matters.

 

What Is Adult Guardianship?

 

Adult guardianship is a court-supervised legal arrangement that allows a guardian to exercise certain rights on behalf of an adult found unable to exercise those rights independently.

Under Florida Statutes Chapter 744, Florida law establishes the requirements for guardianship, including incapacity proceedings, appointment of guardians, guardian powers and duties, and termination of guardianship.

 

Depending on the court’s findings, a guardian may receive authority concerning:

 

• Health care and medical decisions
• Living arrangements and personal care
• Financial accounts and property
• Payment of bills and expenses
• Contracts and other financial matters
• Other responsibilities authorized by the court

 

A guardianship of an adult should be tailored to the individual’s actual needs. The purpose is not to take away independence unnecessarily, but to provide protection when an adult cannot safely exercise certain rights without assistance.

 

When Is Guardianship of an Adult Necessary?

 

Families often begin considering guardianship after noticing significant changes in a loved one’s ability to handle everyday responsibilities.

 

For example, an adult may have difficulty:

 

• Understanding important medical decisions
• Managing money or paying bills
• Protecting himself or herself from financial exploitation
• Maintaining a safe living environment
• Understanding contracts or financial transactions
• Arranging necessary medical or personal care

 

These concerns do not automatically mean that adult guardianship is necessary. The court considers the person’s individual abilities and whether another legal arrangement could provide sufficient protection.

 

Under Florida law, having an attorney for guardianship is required, except for a guardian of a person in a Guardian Advocacy. 

 

Power of Attorney vs. Guardianship: What Is the Difference?

 

The phrase power of attorney vs. guardianship can be confusing because both may allow one person to assist another with important decisions. However, the two arrangements differ significantly.

 

A durable power of attorney in Florida is generally created voluntarily while an individual has the legal capacity to execute the document. The individual chooses an agent and determines what authority that person will receive. A valid durable power of attorney may sometimes eliminate or reduce the need for guardianship. Estate planning may allow an adult to decide who will assist him or her if incapacity occurs in the future.

 

Guardianship, by contrast, involves a court proceeding. A judge determines whether the adult cannot exercise particular rights and whether those rights should be delegated to a guardian.

 

How Does the Florida Guardianship Process Work?

 

The guardianship process for an allegedly incapacitated adult generally begins with a petition asking the court to determine incapacity. Florida law establishes specific procedures designed to protect the person whose rights may be affected. The court appoints an examining committee to evaluate the alleged incapacitated person. The committee considers matters such as the person’s physical condition, mental health, and ability to function independently. The court also appoints an attorney to represent the alleged incapacitated person, although he or she may substitute his or her own attorney.

 

After reviewing the evidence, the judge determines whether the adult is incapacitated and, if so, which rights he or she cannot exercise. The court must also consider whether alternatives to guardianship can adequately address the individual’s needs.

 

The Florida Courts guardianship resource provides additional information about adult guardianship, limited and plenary guardianships, guardian appointments, and court oversight.

 

Limited Guardianship, Plenary Guardianship, and Guardian Advocacy

 

Not every adult who requires assistance needs the same level of protection. Florida law recognizes different forms of guardianship based on an individual’s needs.

 

Limited Guardianship

 

A limited guardianship may be established when an adult can exercise some rights but cannot safely exercise others. The guardian receives authority only over the rights specified by the court.

For example, an individual might need help managing complex financial matters while remaining capable of making other personal decisions. Limited guardianship can help preserve as much of the person’s independence as possible while providing necessary protection.

 

Plenary Guardianship

 

A plenary guardianship provides broader authority. It may be appropriate when the court determines that an adult cannot exercise the delegable rights necessary to care for himself or herself or manage his or her property. Because plenary guardianship can significantly restrict an individual’s decision-making authority, courts consider whether less restrictive options are sufficient before granting this level of guardianship.

 

Guardian Advocacy

 

Under Florida law, Guardian Advocacy is a less restrictive form of guardianship designed for a person with a developmental disability who needs help making some, but not all, decisions about personal care, property, or finances. A court can appoint a Guardian Advocate without declaring the person legally incapacitated, and the person keeps all rights that the court does not specifically delegate to the Guardian Advocate. For this type of guardianship, an attorney is not required if the guardianship is for the person only. However, if the guardianship is for person and property, an attorney is required. .

 

What Is Emergency Guardianship?

 

In some situations, a family may believe that immediate action is necessary to protect an adult or his or her property. An emergency guardianship may be considered when the statutory requirements for appointing an emergency temporary guardian are satisfied. Under specified circumstances, Florida law allows a court to appoint an emergency temporary guardian before appointing a permanent guardian.

 

For example, immediate concerns might involve an adult’s safety or the possibility that his or her property could be lost, misappropriated, or wasted.

 

Emergency proceedings have specific legal requirements and time limitations. A guardianship lawyer can explain whether the circumstances may support seeking emergency relief.

 

What Are the Duties of a Guardian?

 

The duties of a guardian depend on the authority granted by the court. Becoming a guardian involves legal responsibilities, not simply helping a family member with everyday tasks.

A guardian of the person may make decisions about health care, personal needs, safety, and living arrangements.

 

A guardian of the property may manage assets, income, expenses, and other financial matters.

 

Depending on the guardianship, responsibilities may include:

 

• Protecting the individual’s assets
• Paying appropriate expenses
• Maintaining financial records
• Making authorized health care or personal decisions
• Filing required reports with the court
• Following court orders
• Acting in the individual’s best interests

 

Guardianships remain subject to court supervision. A person considering serving as a guardian should understand his or her responsibilities before accepting the appointment.

 

What Rights Does an Adult Under Guardianship Keep?

 

Being placed under guardianship does not automatically mean that an adult loses every legal right. Florida law provides protections for individuals who have been determined incapacitated. A person generally retains rights that the court has not specifically removed.

 

 Florida’s guardianship laws also recognize important protections concerning dignity, privacy, communication, access to courts, appropriate services, and restoration of capacity.

 

The goal of adult guardianship should be to provide the protection an individual needs without unnecessarily restricting his or her independence. Families concerned about future incapacity may also want to discuss advance directives and other planning options with an attorney before a crisis occurs.

 

Frequently Asked Questions About Adult Guardianship

 

How Do I Get Guardianship of an Adult?

To get guardianship of an adult, you generally file a petition with the appropriate Florida court. For an involuntary guardianship, the court follows a formal incapacity proceeding before determining whether a guardian is necessary. The court must also consider whether less restrictive alternatives could sufficiently protect the adult.

 

Do I Need a Guardianship Attorney?

Florida guardianship proceedings involve court filings, statutory requirements, ongoing responsibilities, and important individual rights. A guardianship attorney can explain the process, prepare necessary legal documents, and help a family understand what type of guardianship or alternative may be appropriate.

 

Is a Power of Attorney Better Than Guardianship?

Neither option is automatically better. When considering power of attorney vs. guardianship, the right choice depends on the individual’s circumstances. A valid durable power of attorney may provide sufficient assistance in some situations. Guardianship may be necessary when existing documents do not provide adequate protection or when other legal issues prevent an alternative from meeting the person’s needs.

 

What Is the Difference Between Limited and Plenary Guardianship?

A limited guardianship gives a guardian authority over specific rights identified by the court. A plenary guardianship gives the guardian broader authority over delegable rights the court has removed from the incapacitated adult.

 

Can Adult Guardianship End?

Yes. Guardianship does not necessarily have to remain in place permanently. If an individual’s condition improves, Florida law provides procedures for seeking restoration of rights. Guardianship may also change when circumstances support modifying the arrangement.

 

Talk With a Florida Guardianship Attorney at Mara Law, P.A.

 

Making decisions about adult guardianship can be difficult for any family. A loved one may need help with finances, health care, personal safety, or other essential matters. Families may be unsure whether guardianship is necessary or whether a less restrictive alternative could provide the needed protection.

 

Mara Law, P.A. helps families understand their options. Attorney Wendy A. Mara and her team assist clients with adult guardianship and related elder law matters. The firm serves clients throughout Volusia and Flagler Counties, FL, from offices in Ormond Beach, Palm Coast, Daytona Beach, and DeLand. 

 

If you are concerned about an adult loved one’s ability to manage his or her health, finances, property, or personal needs, an experienced guardianship lawyer can help you determine the appropriate next step. Contact Mara Law, P.A., at (386) 672-8081 to schedule an initial consultation and learn more about the Florida guardianship process.