It can feel overwhelming when someone you love can no longer care for themselves, make sound decisions, or manage their finances. You want to do the right thing, but figuring out the legal steps can be confusing and emotionally charged.
At Biello & Soowal, PLLC, we help Florida families address these complex and sensitive matters with compassion, clarity, and confidence. As a trusted estate planning law firm in Florida, we know how critical it is to protect those who cannot protect themselves.
Whether due to age, illness, disability, or injury, there may come a time when guardianship or conservatorship becomes necessary. Our role as your Florida guardianship and conservatorship attorney is to simplify the process, protect your loved one’s rights, and ensure you have the guidance you need at every stage.
What Are Guardianship and Conservatorship?
In Florida, guardianship and conservatorship are legal relationships created by the court to safeguard the interests of a person who cannot manage their own personal or financial affairs. These terms are often used together, but they serve slightly different purposes.
- Guardianship refers to the legal process of appointing a guardian to make personal, health, and/or financial decisions for another person, known as the ward.
- Conservatorship, while used more often in other states, typically refers to financial oversight. In Florida, guardianship may include personal and financial authority, depending on the scope assigned by the court.
The Florida Statutes, Chapter 744, govern guardianship in the state. According to §744.102(12), an “incapacitated person” is someone who has been judicially determined to lack the capacity to manage at least some of their property or to meet essential health and safety requirements.
When Is Guardianship or Conservatorship Needed?
Guardianship and conservatorship are serious legal steps that involve removing certain rights from another person. Because of that, the courts will only approve them when no other viable alternatives exist.
Some of the most common scenarios that lead to a guardianship proceeding include:
- Cognitive Decline in Seniors: Alzheimer’s disease and other forms of dementia often impair an individual’s ability to manage their affairs or make rational decisions.
- Developmental Disabilities: Adults with intellectual disabilities may require a guardian to manage their healthcare, housing, or finances, even after turning 18.
- Mental Illness: Individuals suffering from schizophrenia, bipolar disorder, or severe depression may need protective oversight if they pose a risk to themselves or others.
- Traumatic Brain Injuries: Accidents or medical conditions that cause sudden incapacitation may trigger an urgent need for court-appointed assistance.
- Minor Children without Parents: If a child’s parents are deceased or unable to provide care, a guardian must be appointed to ensure the child’s welfare.
According to the Florida Department of Elder Affairs, there are approximately 4.6 million adults age 60 and older in the state, many of whom could face guardianship proceedings in their lifetime. With Florida’s large elderly population, these issues are becoming increasingly common.
The Guardianship Process in Florida
At Biello & Soowal, PLLC, we help families throughout Florida understand and manage each step of the guardianship or conservatorship process. Here’s a breakdown of how the system works.
1. Filing a Petition
The process begins when a concerned individual (usually a family member or friend) files two petitions with the court: one to determine incapacity, and another to appoint a guardian. These documents must be filed in the circuit court in the county where the alleged incapacitated person resides.
2. Appointment of a Committee
The court then appoints an examining committee, usually made up of three members, including at least one medical professional. These individuals evaluate the person’s physical and mental capacity and submit a written report to the court.
3. Judicial Hearing
A court hearing is held if the committee determines that the person is incapacitated. The judge will review all reports and evidence before making a final decision. The alleged incapacitated person (AIP) has the right to legal counsel and the opportunity to be heard.
4. Appointment of Guardian
If the judge rules that guardianship is necessary, the court will appoint a guardian and issue letters of guardianship that specify what powers the guardian has. This may include limited or plenary guardianship.
- Limited Guardianship: The guardian has only those powers the court deems necessary. The individual retains the rights they can still manage.
- Plenary Guardianship: The guardian has full legal authority to manage all of the ward’s affairs.
5. Ongoing Court Supervision
Florida law requires guardians to submit annual reports, including a plan for the ward’s care and, if applicable, an accounting of financial transactions. These reports ensure transparency and allow the court to monitor the guardian’s performance.
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Who Can Serve as a Guardian?
Florida Statute §744.309 outlines the requirements for serving as a guardian. Eligible individuals include:
- A resident of Florida who is at least 18 years old
- A nonresident who is a close relative of the ward
- Professional or public guardians certified by the state
Guardians must pass a background check and complete an educational course approved by the court. In cases involving substantial assets, a guardian may also be required to post a bond or retain legal counsel to manage the ward’s estate.
What Rights Does the Ward Retain?
Even in guardianship, individuals retain certain rights unless otherwise specified by the court. These include:
- The right to be treated with dignity and respect
- The right to privacy
- The right to participate in decisions whenever possible
- The right to complain or request a change in guardianship
Under Florida’s guardianship reform laws, the courts are encouraged to consider less restrictive alternatives and to limit the guardian’s authority to only what is absolutely necessary.
Conservatorship for Absentees
Florida also provides for a unique type of conservatorship under Chapter 747 of the Florida Statutes: conservatorship for absentee persons. This applies when a person is missing, interned in a foreign country, or unable to manage their property for an extended time. A conservator may manage the absentee’s assets until they return.
This conservatorship often arises in cases involving military service, imprisonment, or natural disasters, where the person’s whereabouts are unknown.
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Alternatives to Guardianship and Conservatorship
Guardianship should always be a last resort. Fortunately, several legal tools allow individuals to plan and maintain greater control over their futures. As an estate planning lawyer in Florida, we routinely help clients explore these alternatives:
1. Durable Power of Attorney
A durable power of attorney allows you to designate someone you trust to handle financial and legal matters on your behalf. This document remains effective even if you become incapacitated, avoiding the need for court intervention.
2. Healthcare Surrogate Designation
A healthcare surrogate is someone you appoint to make medical decisions if you cannot do so yourself. This document and a living will can provide clear instructions about your medical preferences.
3. Revocable Living Trust
A trust allows you to transfer your assets into a legal entity managed by a trustee. If you become incapacitated, the successor trustee can manage the trust without court involvement.
4. Pre-Need Guardian Designation
Under Florida law, individuals can file a written declaration naming who they would want as their guardian if needed. This document can help prevent family disputes and ensure your preferences are honored.
Common Issues in Guardianship or Conservatorship Cases
While guardianship and conservatorship are vital tools for protecting vulnerable individuals, the process is often challenging. At Biello & Soowal, PLLC, we frequently assist clients in resolving complex and emotionally charged issues that arise during or after a guardianship is established. Understanding these common problems can help you navigate the process more effectively and avoid unnecessary conflict.
1. Family Disputes Over Guardianship
One of the most frequent issues in guardianship cases involves disagreements among family members. It’s not uncommon for multiple relatives to believe they are the most suitable guardians, leading to contested hearings and strained relationships. These disputes can delay the process, increase legal fees, and create long-lasting tension among loved ones. We work closely with our clients to mitigate these conflicts and advocate for the best solution that suits the ward’s interests.
2. Allegations of Guardian Misconduct
Guardians are held to a high standard of care, but unfortunately, there are cases where the person appointed fails to act in the ward’s best interest. Mismanagement of funds, neglect, or abuse can trigger legal action and require court intervention. Florida courts monitor guardianships through mandatory reporting, but when red flags arise, it may be necessary to seek the removal of the guardian or petition for a change. Our firm helps families investigate these concerns and take swift legal action when necessary.
3. Disagreements About Medical or End-of-Life Decisions
Another common source of tension involves major medical decisions. Guardians often face difficult choices about surgery, long-term care, or life-sustaining treatments. When other family members disagree with the guardian’s decisions, it can lead to challenges in court. These cases are emotionally difficult and legally complex, particularly when unclear or nonexistent advance directives.
4. Ambiguity Around Capacity and Independence
Some guardianships are established under the belief that the individual is fully incapacitated, only to discover later that they retain specific decision-making abilities. Restoring rights or modifying the guardianship can be legally complex and emotionally sensitive. Florida law favors the least restrictive means necessary, and courts must balance protection with autonomy.
As your Florida guardianship and conservatorship attorney, we are here to help you anticipate and resolve these common issues, always prioritizing the dignity and well-being of the ward. Our proactive legal guidance can help prevent disputes before they escalate and ensure the guardianship serves its intended purpose.
Common Questions About Guardianship in Florida
How long does it take to establish guardianship?
Depending on the complexity of the case and court scheduling, the process can take several weeks to a few months. In urgent situations, emergency temporary guardianships may be granted more quickly.
Can a guardianship be terminated?
Yes. If a ward regains capacity, the court can restore their rights and terminate the guardianship. A guardian may also be removed for misconduct or failure to meet legal obligations.
What happens if no one is available to serve as a guardian?
If no suitable family member or friend can serve, the court may appoint a professional guardian. Florida has a registry of certified professional guardians trained to manage these responsibilities.
Why Work With Biello & Soowal, PLLC?
At Biello & Soowal, PLLC, we are more than just attorneys—we are partners in your journey to protect your loved ones. As a trusted estate planning law firm in Florida, we provide the legal knowledge and practical tools families need during difficult times.
When you work with us, you get:
- Personalized Service: We take time to understand your family’s needs and craft solutions that work for you.
- Comprehensive Support: From planning documents to courtroom advocacy, we’re with you every step of the way.
- Peace of Mind: You can trust that we’ll handle your matter with care, professionalism, and respect for your family dynamics.
Whether you are exploring guardianship for an elderly parent, planning for a child with special needs, or seeking alternatives to court intervention, we’re here to help you make informed decisions that honor your loved one’s dignity and protect their future.
Talk to a Florida Guardianship and Conservatorship Attorney Today
Taking the first step toward guardianship or conservatorship can be emotional, but you do not have to do it alone. At Biello & Soowal, PLLC, we are committed to helping Florida families navigate these legal issues with confidence and compassion.
Let us help you determine the right path for your situation—whether it’s formal guardianship, a durable power of attorney, or another planning tool. As experienced Florida guardianship and conservatorship attorneys, we will provide the clarity and advocacy you need.
Contact us today to schedule your consultation and take the next step toward peace of mind.
