Guardianship

Most people think of guardianships as the appointment of an adult acting on behalf of a minor child when that child’s parents are unable, unwilling, or incapable of handling parental responsibilities. However, Florida guardianship law generally applies to incapacitated persons, and the Florida Statutes on guardianships explain the requirements and procedures for establishing a guardianship over a person and the court’s role in same. Although there are several types of guardianships, a guardianship is most often established for either a minor who requires a guardian of the minor’s property (typically either as the result of a recovery in a lawsuit or an inheritance), or for an incapacitated person who lacks the capacity to manage some or all of his or her own affairs. Although involuntary guardianships are more common, Florida law does allow voluntary guardianships when an adult who, although mentally competent, cannot manage his or her own affairs and petitions the court for the appointment of a guardian.

Adjudicating a person totally incapacitated and in need of a guardian deprives the person of all his or her civil and legal rights. The courts and the Florida legislature are cognizant that such deprivation may be excessive or unnecessary, and consequently, strive to make the least restrictive form of guardianship available, or determine that less restrictive alternatives to a guardianship exist. A guardian may not be appointed if the court determines there is an alternative to guardianship that will sufficiently address the problems of the alleged incapacitated person.

When someone is incapable of managing all or some of their own affairs due to a lack of capacity, there is no one with the proper authority to make decisions on their behalf (unless that incapacitated person executed valid advance directives prior to their incapacity) for those affairs they are incapable of independently managing. When this situation arises, a guardianship must be initiated.

If you believe a child or an incapacitated adult is in need of a guardianship, Chepenik Trushin LLP is here to help guide you through the process.