Florida Statutes, Chapter 744, is known as the Florida Guardianship Code. The below is my summary of this set of laws as I believe they relate to the practice of Elder Law. This summary of Guardianship laws is incomplete, subject to change, and for informational purposes only.
PART I. GENERAL PROVISIONS.
744.1012. Legislative Intent. Adjudicating someone as totally incapacitated and in need of a guardian deprives them of all civil and legal rights, such deprivation may be unnecessary. As a result, the legislature wants the courts to find the least restrictive form of guardianship necessary to assist those who are only partially incapable of caring for their needs. Courts should always look for alternatives to guardianship and less restrictive means of assistance, including but not limited to exploring guardian advocates before appointing a plenary guardian. Look for ways to permit incapacitated people to participate as fully as possible in all decisions affecting them.
744.1012(4)-(6). When no private guardian (e.g. usually family) is available or willing to serve, and the incapacitated person cannot pay for a professional guardian, Office of Public and Professional Guardians will appoint a guardian.
Attorney for Incapacitated Person: lawyer who represents the alleged incapacitated person (AIP).
Audit: systematic review of financial and other documents to ensure compliance with F.S. 744.368.
Corporate Guardian: corporation authorized to exercise fiduciary or guardianship powers in this state.
Court Monitor: person appointed by court, under F.S. 744.107 to provide the court with information concerning a ward.
Estate: property of the ward subject to administration.
Foreign Guardian: a guardian appointed in another state or country.
Guardian: person appointed by the court to act on behalf of a ward’s person, property or both.
- Limited Guardian: guardian appointed to exercise the legal rights and powers specifically designated by the court (i.e. the court finds that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for their person or property - or the warn voluntarily petitioned for the appointment of a limited guardian.
- Plenary Guardian: guardian appointed to exercise all delegable legal rights and powers of the ward (i.e. court find that the ward lacks all capacity to care for their person and property).
Guardian-ad-Litem: person appointed, while a particular legal matter is pending, to represent a ward in that proceeding.
Guardian Advocate: person appointed to represent someone with developmental disabilities under F.S. 393.12. As used in this chapter, the term does not apply to a GA appointed for a person determined incompetent to consent to treatment under F.S. 394.4598.
Incapacitated Person: one who has been judicially determined to lack the capacity to manage at least some of the property or meet at least some of the essential health and safety requirements of the person.
- “Manage property” means taking actions necessary to administer/dispose of real and personal property, business property, benefits and income.
- “Meet essential health and safety requirements” means those actions necessary to provide the health care, food, shelter, clothing, hygiene, and other care.
Next of kin: heirs at law of the ward or AIP if person were deceased.
Preneed Guardian: person named in written declaration to serve as guardian in the event of incapacity of the declarant as provided in F.S. 744.3045 below.
Professional Guardian: guardian who has at any time rendered services to three or more wards as their guardian (unless they are relatives). A public guardian is considered a professional guardian for regulation/education purposes.
Standby Guardian: a person empowered to assume duties of guardianship upon the death of adjudication of incapacity of the last surviving guardian.
Surrogate Guardian: guardian designated according to F.S. 744.442.
Totally Incapacitated: incapable of exercising any of the rights listed in 744.3215(2) and (3).
Ward: the person for whom a guardian has been appointed.
744.1025. Other Definitions. See Florida Probate Code for other definitions.
744.105. Costs. In all guardianship proceedings, costs may be awarded.
744.107. Court Monitors. (1) Upon inquiry from any interested person, or on its own motion, court may appoint a monitor. Monitor may not be a family member or anyone with a personal interest in the proceedings.
(2) The monitor may investigate, seek information, examine documents, interview the ward and will report to the court their findings.
(3) If it appears from the monitor’s report that further intervention is necessary to protect the interests of the ward, the court may (after a hearing with notice) order amendments to plan, require accounting, order production of assets, freeze assets, suspend guardian or initiate proceedings to remove the guardian.
(4) Unless otherwise prohibited, monitor may be allowed a reasonable fee as determined by the court and paid from the property of the ward.
(5) If ward is indigent, court may appoint Office of Criminal Conflict and Civil Regional Counsel as monitor.
744.1075. Emergency Court Monitor. (1)(a). Monitor may be appointed without notice on an emergency basis (imminent danger to physical health, mental health or safety; or property is in imminent danger of being wasted, misappropriated or lost unless immediate action is taken).
(1)(b). Authority of monitor appointed under this section expires 60 days after the date of appointment. 30 days extension available upon showing that emergency conditions still exist.
(2). Within 15 days after entry of order of appointment, monitor must file report of findings and recommendations to the court.
(4)(a). If court finds probable cause, court shall issue an order to show cause directed to guardian or other respondent requiring to appear and show cause why court should not take further action.
(4)(b). Prior to hearing, court may issue temporary injunction, restraining order, freeze assets, suspend guardian, appoint guardian-ad-litem, or take other action to protect ward.
744.108. Guardian and Attorneys Fees/Costs. Attorney who renders service to ward or guardian on ward’s behalf is entitled to reasonable fees (court will consider: time/labor required, novelty/difficulty of questions involved and skill required; fee customarily charged; value of incapacitated person’s property, results obtained, etc..)
(4)-(7). Paralegal time may be charged, petition for fee must include itemized description, and notice must be provided to guardian and ward (unless ward is minor or totally incapacitated). Petition for fee should include all amount of prior costs/fees awarded from same ward or regarding the same matter before the court.
744.1059. Hearings. At any hearing, the AIP or Ward has the right to: remain silent (which cannot be used as evidence of incapacity); testify, present evidence, call witnesses, confront/cross examine all witnesses and have the hearing be open or closed.
744.1097. Venue. Venue for declaration of incapacity is where the AIP resides or is found. (2) Discusses venue for appointment of guardian.
744.1098. Change of Ward’s Residence. Guardian who has power to determine residence of ward may not change the residence of the ward from Florida to another state, without prior court approval. May not change residence from one county to another county (unless to an adjacent county) without prior court approval.
(2). If guardian wants to remove the ward to an adjacent county they must notice the guardianship court within 15 days after relocation. Such notice shall state the compelling reason for relocation of the ward and for how long the guardian expects the ward to remain in such other county.
PART II. PUBLIC & PROFESSIONAL GUARDIANS.
The Office of Public and Professional Guardians is governed by the Department of Elderly Affairs.
744.2004. Complaints Disciplinary Proceedings, Penalties. OPPG must have procedures to review and investigate complaints that a professional guardian has violated the standards of practice. (b) initiate investigation within 10 business days after complaint is received. (c) complete and provide initial investigative findings/recommendations to the professional guardian and complainant within 60 days after receipt of complaint.
744.20041 discusses grounds on which discipline and penalties can be enforced.
744.2005. Order of Appointment. If any interested person believes that they (or another) should be appointed guardian, instead of the public or professional guardian, they may intervene in the proceedings.
744.2007. Powers and Duties. (1). A public guardian may serve as guardian of someone adjudicated incapacitated under this chapter if there is no family member or friend, other person, bank or corporation willing and qualified to serve as guardian (who have limited financial means). (6) if a family member or friend is found that is willing to serve as guardian, the public guardian shall petition the court for appointment of a successor guardian. (7). A public guardian may not commit a ward to a mental illness public treatment facility as defined in 394.455(47) without an involuntary placement proceeding as provided by law.
PART III. TYPES OF GUARDIANSHIP.
744.301. Natural Guardians. Parents are the natural guardians of their own children / adopted children, during minority (unless terminated). Parents may act as natural guardians unless court finds that it is not in the child’s best interests.
(2). If amounts received in aggregate do not exceed $15,000, natural guardians may consummate settlement of any claim for damages (collect, receive, manage, dispose) of the proceeds of any settlement, or real/personal property distributed from an estate or trust.
(3). Natural guardians can waive/release a commercial activity provider from “inherent risks” that result in their minor child’s personal injury, including death, even if the provided text is included in the release signed by natural guardian: “Notice to the Minor Child’s Natural Guardian.”
744.3025. Claims of Minors - (Personal Injury).
(1)(a) court may appoint guardian-ad-litem if gross settlement exceeds $15,000 if court believes a guardian-ad-litem is necessary to protect the minor’s interest.
(1)(b) court must appoint guardian-ad-litem to represent the minor’s interest before approving a settlement of minor’s personal injury claim if gross settlement equals or exceeds $50,000.
(2) Unless waived, court shall award reasonable fees and costs to guardian-ad-litem to be paid out of the gross proceeds of the settlement.
744.3031. Emergency Temporary Guardians. For imminent danger. Powers/duties of emergency temporary guardian must be specifically enumerated by court order. Notice of hearing must be provided to AIP and attorney at least 24 hours before hearing commences (unless substantial harm to AIP would occur if 24 hour notice is given). Authority for emergency temporary guardian expires in 90 days from date of appointment. Another 90 day extension may be granted upon the showing that the emergency condition still exists.
744.304. Standby Guardianship.
744.3045. Preneed Guardian. A competent adult may name a preneed guardian by making a written declaration that names such a guardian to serve in the event of the declarant’s incapacity (must be signed in the presence of two attesting witnesses present at the same time).
(3) Declarant may file the declaration with the clerk of the court. When petition for incapacity is filed, the clerk shall produce the declaration.
(4)-(7). Production of declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian (but the court is not bound if the preneed guardian is found to be unqualified to serve). Preneed guardian will assume duties of guardian immediately upon an adjudication of incapacity. Within 20 days after assumption of duties of guardian, preneed guardian must petition for confirmation.
744.3046. Preneed Guardian for Minor. Both parents (or surviving) may nominate a preneed guardian of the person or property or both of the parent’s minor child by making a written declaration that names such a guardian if the minor’s last surviving parent becomes incapacitated or dies.
(2) The written declaration must identify the declarant(s) and be signed in the presence of at least two attesting witnesses present at the same time. It must also contain the following information for each minor child named in such declaration: full name as it appears on the birth certificate, date of birth, and social security number.
(3) Declarant must file the declaration with the clerk. When petition for incapacity of last surviving parent or appointment of guardian upon death of last surviving parent is filed, clerk shall produce the declaration
(court is not bound if they are unqualified to serve)
(7) Within 20 days after assuming duties as guardian, a preneed guardian must petition for confirmation of appointment.
744.3085. Guardian Advocates. Circuit court may appoint a guardian advocate, without adjudication of incapacity, for a person with developmental disabilities if the person lacks capacity to do some, but not all, of the tasks necessary to care for themselves - or - if the person has voluntarily petitioned for the appointment of a guardian advocate.
PART IV. GUARDIANS.
744.309. Who May be Appointed Guardian of a Resident Ward.
(1). Resident. Any resident of Florida over age of 18.
(2). Nonresident. Nonresident of Florida must be related by lineal consanguinity to the ward or a legally adopted child or parent; or spouse, brother, sister, uncle, aunt, niece or nephew (or the spouse of such person).
(3) Disqualified People: felons and those incapacitated.
(4). Trust company, state bank.
(5) Non-profit corporate guardian.
(6) For profit corporate guardian subject to restrictions.
744.3115. Advance Directives for Health Care. Prior to appointing a guardian, court must determine if the ward, prior to incapacity, has executed any valid advanced directive under chapter 765. If so reconcile what the guardian will handle and what the surrogate shall continue to do with regard to health care decisions.
744.312.Considerations in Appointment of Guardian. Preference given to family member, educational/business/professional experience relevant to nature of services needed; court shall consider the wishes expressed by an incapacitated person as to who should be guardian; consider preference of minor who is age 14 or over as to who should be their guardian.
PART V. ADJUDICATION OF INCAPACITY AND APPOINTMENT OF GUARDIANS.
744.3201. Petition to Determine Incapacity. Verified petition must state name, age, present address of petitioner and his/her relationship to the AIP. Same info for AIP (n/a/l). Petitioner must allege reasons why they believe AIP to be partially or fully incapacitated, who else has personally observed the AIP being incapacitated. Petitioner should provide name/address of AIP’s family or primary physician.
(2)(f) state which rights, enumerated in 744.3215, the AIP is incapable of exercising.
(2)(g) names/addresses of next of kin.
(3) copy of petition for appointment of guardian, or emergency temporary guardian (if applicable) shall be filed with petition to determine incapacity.
744.3203. Suspension of Power of Attorney Before Incapacity Determination.
(1) After petition to determine incapacity, but before an order determining capacity has been entered, the AIP’s power of attorney to a parent, spouse, child or grandchild is suspended when petitioner states that a specific power of attorney should be suspended for:
(1)(a). Agents decisions are not in accord with AIP’s known desires.
(1)(b). Power of attorney is invalid.
(1)(c). Agent has failed or is unable to perform their duties.
(1)(d). Agent has abused powers.
(1)(e). Danger that property of AIP may be wasted, misappropriated or lost unless authority under POA is suspended.
A POA should not be suspended just because there is some dispute between the agent and the petitioner, if that dispute would be more appropriately resolved in some other forum or legal proceeding.
(2) In consideration of the above, the motion must:
(2)(a). Identify one or more grounds in subsection (1).
(2)(b). Include specific statements of fact showing grounds exist to justify suspending POA
(2)(c). Must be sworn to under penalty of perjury.
(3). Upon agent filing of a response to the motion, court will schedule an expedited hearing...unless the motion is made on an emergency basis.
744.3215. Rights of Persons Determined Incapacitated.
(1) A person determined to be incapacitated retains the right to:
(1)(a) have an annual review of guardianship report and plan.
(1)(b) Have continuing review of the need for restriction of their rights.
(1)(c) To be restored to capacity at the earliest possible time.
(1)(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
(1)(e) to have a qualified guardian.
(1)(f) to remain as independent as possible, including having preference as to place and standard of living honored.
(1)(h)-(o) to receive prudent financial management and be informed how property is being managed (if he/she has lost right to manage property), to receive services and rehab necessary to maximize quality of life, to not be discriminated against because of their incapacity, to have access to courts with counsel, to receive visitors and communicate with others, and to privacy.
(2) Rights that may be removed from a person (by order determining incapacity) but not delegated to a guardian.
(3) Rights that may be removed and which may be delegated to the guardian:
(3)(a)-(g) Right to contract, sue/defend suits, apply for government benefits (emphasis added), manage/dispose of property, determine residence, consent to medical/mental health treatment.
(4) A guardian must obtain specific authority from court in order to commit the ward to a facility, institution and consent for ward to take part in any experimental biomedical or behavioral procedure or experiment which court will only allow if it is intended to preserve life, prevent serious impairment, or intended to assist ward to develop or regain his/her abilities. Guardian must also obtain specific permission to petition for ward’s dissolution of marriage.
744.331. Procedures to Determine Incapacity.
(1) NOTICE OF PETITION TO DETERMINE INCAPACITY. Notice of filing petition to determine incapacity and petition for appointment of guardian must be served on the AIP, attorney for AIP, next of kin identified.
(2) ATTORNEY FOR ALLEGED INCAPACITATED PERSON. Court will appoint lawyer and AIP may substitute his/her own attorney in place of the one appointed.
(c) Attorney for AIP cannot also be guardian of AIP, attorney for guardian of AIP, or petitioner.
(3) EXAMINING COMMITTEE. Within 5 days after petition for incapacity has been filed, the court shall appoint an examining committee consisting of three members (MEMBER #1: psychiatrist/MD + MEMBER 2 and 3: psychologist, gerontologist, another psychiatrist, or other physician, nurse practicioner, RN, or LCSW). Examining committee must attempt to consult with AIP’s attending or family physician.
(3)(e) each examining committee member will examine the AIP and determine ability to exercise the rights specified in 744.3215 and they must also examine records produced by the AIP. Members of examining committee must submit their report within 15 days of being appointed.
(3)(f) examination of AIP must include a comprehensive examination (physical, mental health, function assessments).
(3)(g) examining committee member’s written report should include to the extent possible: diagnosis, prognosis and recommended course of treatment and evaluation of AIP’s ability to retain rights + more described in this section.
(3)(h) copy of each committee member’s report must be served on the petitioner and on AIP’s attorney within 3 days after report is filed and at least 5 days before hearing on petition.
(4) If majority of examining committee conclude AIP is not incapacitated in any respect, court will dismiss the petition.
(5) HEARING. Hearing will be set no more than 14 days after filing of examining committee member reports (unless good cause shown). AIP must be present, unless waived by AIP or their attorney. Partial or total incapacity must be established by clear and convincing evidence.
(6) ORDER DETERMINING INCAPACITY. If court determines incapacity, written order will take person’s unique needs and abilities and may only remove those rights court finds the AIP does not have capacity to exercise. A person is only determined to be incapacitated to those rights specified in the order.
(6)(a) Court will make the following findings: exact nature/scope of incapacities, exact areas in which person lacks capacity to make informed decisions about care, treatment or to meet physical/mental or safety. Court will also specifically list the rights person is incapable of exercising.
(6)(b) Court must consider whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.
(7)(c)(2). If petition is dismissed or denied, costs and attorney's fees of the proceeding (including examining committee fees) may be assessed against the petitioner if court finds the petition to have been filed in bad faith.
744.341. Voluntary Guardianship. Without adjudication of incapacity, court can appoint guardian of property of someone who, though mentally competent, is incapable of care, custody, and management of his or her estate by reason of age, physical infirmity and who has voluntarily petitioned for appointment. Voluntary petitioner must include certificate of a physician specifying that the petitioner is competent to understand the nature of guardianship and the delegation of authority involved.
(4) Guardian must include in annual report the same certification (competent and understands what is happening in guardianship)
(5). Voluntary guardianship can be terminated upon the ward filing notice with the court the voluntary guardianship is terminated. A copy must be served on all interested persons.
744.345. Letters of Guardianship. Letters issued by court will specify whether the guardianship pertains to the person, property or both. Letters must state whether the guardianship is plenary or limited. If limited, the letters must state the powers and duties of the guardian and state whether or not and to what extent guardian is authorized to act on behalf of the ward with regard to any advance directive previously executed by the ward.
744.359. Abuse, Neglect or Exploitation by Guardian. No committing fraud, abusing power, wasting/embezzling or intentionally mismanaging assets of ward. A person who believes that a guardian is abusing, neglecting or exploiting a ward shall report the incident to the central abuse hotline of DCF.
PART VI. POWER AND DUTIES.
744.361. Powers and Duties of Guardian. Guardian is a fiduciary and can only exercise those rights that have been removed from ward and delegated to guardian. But guardian of minor can exercise the powers of a plenary guardian.
(6). Guardian shall file initial guardianship report in accordance with F.S. 744.362.
(7). Guardian shall file annual guardianship in accordance with 744.367.
(13). Recognizing that every individual has unique needs and abilities; a guardian who is given authority of a ward’s person shall as appropriate: consider ward’s express desires; allow ward to maintain contact with family and friends (unless that would subject ward to harm); assist ward in developing/regaining capacity if medically possible; to extent possible make provision for medical, mental, rehabilitative or personal care services for the welfare of the ward; evaluate ward’s medical/health care options, financial resources, and desires when making residential decisions that are best suited for current needs of ward; advocate on behalf of the ward in institutional and other residential settings and regarding access to home and community-based services.
744.362. Initial Guardianship Report. Initial report is filed within 60 days after letters of guardianship are signed. Consists of verified inventory and guardianship plan. Initial report should be served on the ward (unless ward is younger than 14 years old or totally incapacitated). Either ward or ward’s attorney may request hearing concerning adequacy of the report.
744.363. Initial Guardianship Plan. Includes: what medical, mental, or personal care services will be furnished for welfare of ward; social and personal services for welfare of ward; place and kind of residential setting best suited for the welfare of the ward; application of health and accident insurance and any other private or governmental benefits which ward may be entitled to meet any part of the costs of medical, mental health, or related services provided to the ward.
(2) Initial guardianship plan must be based on recommendations of the examining committee as incorporated into the order determining incapacity.
(3) Attest that initial guardianship plan was made in consultation with the ward and to the extent reasonable honored ward’s wishes (unless ward is under 14 or totally incapacitated).
744.365. Verified Inventory. All real and personal property must be accounted for that has come into guardian’s possession, including encumbrances, liens and other secured claims on any item, and any trusts of which the ward is a beneficiary.
(2)(b) location of real/personal property so it can be clearly identified or located
(2)(c) description of all sources of income (including but not limited to social security and pensions).
(3). CASH ASSETS. Copy of current statements of all ward’s cash assets from all institutions where cash is on deposit.
(4). SAFE DEPOSIT BOX. initial opening is done in presence of employee of bank. Inventory provided to ward.
(6). Audit fee...for assets exceeding $25,000
744.3675. Annual Guardianship Plan. Updates court with information on conditions of ward, current needs and how those needs will be met in the upcoming year. Details in subsections.
744.3678. Annual Accounting. Guardian must file annual accounting with court including full accounts of receipts and disbursements of all of ward’s property over which guardian has control and statement of property on hand at end of accounting period. Copy of year-end statement of ward’s cash accounts, proof of payment for all expenditures/disbursements made on behalf of the ward.
(4)(a) Fee schedule which guardian must pay to clerk of court for the clerk’s auditing of financial returns. ($20 to $250 depending on size of estate).
744.3679. Simplified Accounting Procedures in Certain Cases.
744.368. Responsibilities of the Clerk of Court. Custodian of guardianship files and review each initial and annual guardianship report to ensure it contains information about the ward addressing a variety of issues on the ward’s medical, residential, financial health.
744.3715. Petition for Interim Judicial Review. Ward or any interested person may petition court for review alleging guardian is not complying with guardianship plan, exceeding authority under guardianship plan, or otherwise violating rights or not acting in best interests of ward.
744.387. Settlement of Claims.
744.397. Application of Income of Property of Ward. Court may authorize guardian to first apply ward’s income to ward’s care, support, education and maintenance. Second to HEMS or burial expenses of ward’s parent, spouse or dependents, if any.
744.421. Petition for Support of Ward’s Dependents. Any person dependent on ward for support may petition for order directing guardian of property to contribute to support of dependent person from property of ward.
744.441. Powers of Guardian Upon Court Approval.
744.442. Delegation of Authority. Guardian may designate surrogate guardian when guardian is unavailable to act after petitioning court requesting permission to designate a surrogate guardian.
744.444. Power of Guardian Without Court Approval.
744.446. Conflicts of Interest; Prohibited Activities; Court Approval. Breach of Fiduciary Duty.
744.447. Petition for Authorization to Act. For acts under F.S. 744.441 or 744.446, petition stating facts showing necessity for the action.
PART VII. TERMINATION. (744.464 - 744.534). Regaining capacity, guardianship resignation, showing of fraud/abuse/waste, conviction of felony, death of ward. Must file final report.
PART VIII. VETERANS’ GUARDIANSHIP (744.602 - 744.653)