Guardianship is a legal process designed to protect children with significant disabilities and adults who are unable to manage their personal care, make informed decisions, or handle their financial affairs. In Florida, guardianship can be an important tool for families who want to protect a loved one from harm, neglect, or exploitation while ensuring that the person receives appropriate care and support.
What is Guardianship?
In legal terms, an “incompetent adult” is an adult who cannot take care of themselves, make decisions that are in their own best interest, or manage their assets because of a physical or mental disability. When a court determines that a person is unable to handle personal or financial affairs, the court may appoint a guardian to make certain decisions on that person’s behalf.
Guardianship is not automatic. It is created through a court process, and the court decides whether a guardian is needed, what powers the guardian should have, and whether any rights should remain with the individual.
Why Parents Should Plan Before a Child Turns 18
Many parents of children with severe disabilities assume they can continue making legal decisions for their child throughout adulthood. However, once a child turns 18, the parent is no longer automatically the child’s legal guardian. Without a court-ordered guardianship or another valid legal arrangement, parents may not have authority to make medical, educational, financial, or personal decisions for their adult child.
This can be surprising and stressful for families. Even when it is clear to parents or close relatives that an adult child lacks the ability to make informed decisions, Florida law generally presumes that every adult is competent unless a court determines otherwise through competency proceedings.
How Guardianship is Established in Florida
In Florida, guardianship and competency proceedings must be filed in court before a guardian can be legally appointed. The court reviews whether the person has the capacity to make decisions and whether guardianship is necessary to protect the individual’s wellbeing or finances.
Because guardianship can remove or limit important rights, families should speak with an experienced Florida guardianship attorney before filing. An attorney can help determine whether guardianship is appropriate, what type of guardianship may be needed, and whether a less restrictive alternative is available.
Types of Guardianship to Consider
Guardian of the Person
A Guardian of the Person is responsible for monitoring the care, safety, and wellbeing of the person with disabilities. This role often includes making decisions about medical care, education, vocational programs, residential placement, and daily supervision. The goal is to ensure that the individual receives proper care and support.
Guardian of the Property
A Guardian of the Property manages and monitors the financial affairs of a person who cannot manage their own money, assets, or property. This may be necessary when the individual has income beyond benefit checks, owns property, has investments, or needs help paying bills and protecting assets. Responsibilities may include managing bank accounts, paying expenses, monitoring investments, and handling real property.
Limited Guardianship
A guardianship does not always have to cover every area of a person’s life. A limited guardianship may give the guardian authority only over specific decisions while allowing the individual to keep certain rights. For example, a person may need help with medical decisions or medication management but still be able to make choices in other areas of life.
Temporary Guardianship
A Temporary Guardian may be appointed in an emergency when immediate decisions are needed to protect the person or their finances from harm. This type of guardianship is typically used when waiting for a full guardianship proceeding could expose the individual to danger, exploitation, or financial loss.
Less Restrictive Alternatives to Guardianship
If an individual with a disability can make some decisions but needs help with others, guardianship may not be the only option. Florida courts and families often consider less restrictive alternatives first because they may preserve more of the individual’s independence while still providing protection.
- Joint bank account: A joint account can help prevent rash or unsafe spending. Benefit checks, such as Social Security or SSI payments, may be deposited directly into the account, allowing a trusted person to help monitor funds.
- Representative payee: For individuals who receive Social Security, Railroad Retirement, or Veterans Benefits, a representative payee may be appointed to receive and manage benefit payments on the individual’s behalf.
- Durable Power of Attorney for property: This legal document allows one person to handle another person’s financial affairs. It is generally most useful when the individual still has the capacity to make basic, meaningful decisions but needs help with complex financial matters. If a Florida court later determines the individual is incapacitated, the Durable Power of Attorney may become void.
- Designation of Health Care Surrogate: Also known as a health care proxy, this document allows a person to name someone to make health care decisions if they cannot do so in the future. Unlike a Durable Power of Attorney, a Designation of Health Care Surrogate may survive a determination of incapacity.
- Trust: A trust may be appropriate when funds or assets need to be managed for the benefit of a person with a disability. A trustee controls the assets according to the trust terms, which can help protect resources and provide long-term support.
Court Supervision and Annual Reporting
Guardians in Florida are appointed and supervised by the appropriate Florida court. Once appointed, a guardian must provide regular reports so the court can review the individual’s care and finances.
Florida law generally requires two important annual reports:
- Annual Accounting: This report explains how the individual’s financial affairs were handled during the previous year. It includes a detailed accounting of debits, credits, account activity, and financial management.
- Annual Plan of the Person: This report addresses the individual’s residential setting, medical care, and social environment. Unlike the Annual Accounting, which looks back at the prior year, the Annual Plan looks ahead to the individual’s expected care and living arrangements for the upcoming year.
Who Pays for Guardianship?
In general, a Florida guardian is responsible for managing the individual’s financial resources but is not personally responsible for paying the individual’s expenses from the guardian’s own funds. Typically, guardianship costs are paid from the assets of the person for whom the guardianship is established, subject to court oversight and applicable law.
When to Speak With a Florida Guardianship Attorney
Families should consider speaking with a knowledgeable Florida guardianship attorney when a loved one is approaching age 18, has a disability that affects decision-making, is vulnerable to exploitation, or can no longer safely manage personal care or finances. An attorney can explain the available legal options, help evaluate whether guardianship is necessary, and identify less restrictive alternatives when appropriate.
Guardianship can provide meaningful protection, but it is also a serious legal step. The best approach is one that safeguards the individual’s health, safety, and assets while preserving as much independence and dignity as possible.