Guardianship Basics Part I: What is a Guardianship?

By: J. Mason Williams IV

The Florida Bar defines a guardianship as “a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person and is governed by Chapter 744, Florida Statutes.”  What Is Guardianship? Pamphlet.  So what does that mean?  Well, it means that a guardian is appointed by a circuit court to care for an incapacitated person or their assets.

The Florida Bar again gives us guidance on who a guardian is and who an incapacitated person is: “A guardian is an individual or institution . . . appointed by the court to care for an incapacitated person – called a ‘ward’ or for the ward’s assets” and “[a]n incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some of the essential health and safety requirements of the person.”  What Is Guardianship? Pamphlet.  Bottom line: guardians take care of the ward (person), the ward’s property, or both.

An incapacitated person is typically in need of a guardianship if they have no advance health care directives, cannot take care of themselves or their assets, and they are in danger of hurting themselves or others.  It must be a determination made by the court system, not just a medical doctor, psychologist, psychiatrist, or similar medical professional.

Under general guardianship, two proceedings must occur.  First, the alleged incapacitated person must be determined to be incapacitated.  Second, once determined incapacitated, the court must determine who their guardian will be.  Therefore, general guardianships require two sets of proceedings.

There are several different types of guardianships and reasons for guardianships though that can change the process.  There are general involuntary guardianships, voluntary guardianships, emergency temporary guardianships, guardianships of a minor, guardianship advocacy, public guardianships, veteran’s guardianships, and although not technically a guardianship, conservatorships which are similar to guardianships and fall under the same chapter in the Florida Statutes.  Each type of guardianship has different requirements, provides different powers and duties to the guardian, removes different rights from the ward, and is necessary or desired for different reasons.

If you need assistance with a guardianship or similar matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.