Blog

How to Establish a Florida Guardianship for Your Adult Child

Things often happen that are completely out of your control.  For example, imagine you have an adult child in his late twenties, unmarried, with an established career.  His life was on track and headed in the right direction. One day he went out for a weekend fishing trip with some friends. A horrific car accident left him with a severe traumatic brain injury.

Your son, unfortunately, can no longer care for himself.  He needs a court appointed guardian to legally be able to make decisions on his behalf.  As his parent, you feel the need to take on that role. It is now up to you to ensure that he receives the best care possible and has the best quality of life.  You must first understand the process the Court uses to determine the necessity of and establishing a Florida Guardianship. The process can be very complicated in Florida. You should consult with a knowledgeable and experienced Florida Guardianship Attorney who can help guide you through the guardianship process so that your son obtains the care he needs.

In Florida, a legal guardian for an adult is required to manage the affairs of the person that is unable to take care of him or herself.  This occurs if there are no less restrictive alternatives, such as a valid Trust, Durable Power of Attorney, and Designation of Health Care Surrogate. If you are granted the guardianship of your son, you will be legally responsible for making decisions about his day-to-day life. You will be obligated by ethical and Florida statutory rules and laws to make decisions for him that are in his best interests.

In order to be a guardian in Florida, there are certain qualifications that you must meet. For example, you must be at least 18 years old and a Florida resident. If you are not a resident of the state, you are still eligible to be a guardian if you meet additional qualifications. Generally, you have to be a close relative or married to a close relative of the incapacitated person. As his parent, you satisfy this qualification.  In addition, you must not have any prior felony convictions for the court to consider you a suitable guardian. You must pass a criminal and credit background check, and you will be required to submit fingerprints to the Court through an authorized agency. You will also be required to complete a guardian education course.

Typically there are three main documents that you must file with the appropriate Florida Circuit Court in order to petition to be appointed as guardian for your son. The Petition to Determine Capacity is the document that establishes the need for the appointment of a guardian. The Petition for Appointment of Guardian is a formal request asking the court to appoint a guardian. The Application for Appointment as Guardian is the document you will file that requests that the Court appoint you as your son’s legal guardian, and includes information pertaining to you, such as education and employment history.

The Court will appoint a three-person committee called the Examining Committee to examine your son. The committee will usually consist of a medical doctor, such as a psychiatrist, a psychologist, and a qualified lay person, such as a nurse or social worker. Each member will separately evaluate your son, and will provide to the court a separate written report. The Court takes into account the examining committee’s recommendations in determining whether a guardianship is necessary; and the type of guardianship, whether a limited guardianship or a total plenary guardianship. In addition, the court will also appoint an attorney to represent your son while this process takes place.

Typically there are two types of guardianship: limited and plenary. A limited guardianship is appropriate if the court finds that your son lacks the capacity to do some, but not all, of the tasks necessary to care for his person or property.  A plenary guardian exercises all delegable legal rights and powers of your son if the court makes a finding that your son is totally incapacitated and is unable to make any decisions for himself.

You also will want to obtain written consents to your appointment as Guardian, from interested persons, such as the other parent of the child.

Applying for guardianship can be a very complicated process. If you are considering applying for Florida Guardianship of an adult child, it is important that you completely understand the process and procedures. A knowledgeable and experienced Florida Guardianship Attorney can assist you in these matters.

If you have any questions, or would like to further discuss this, or other Guardianship or Probate Administration matters please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7600, and visit my website at www.AnnMarieGildenLaw.com

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create any attorney client relationship.