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Guardianship

Florida has a guardianship legal system designed to serve minors and incapacitated adults so that their legal rights are protected, they are properly cared for and do not become the victim of exploitation. Florida’s approach is to use the least restrictive form of guardianship while encouraging an adult to maintain those legal rights they are capable of exercising.

My staff and I are advocates for the minor or incapacitated adult and do our very best to educate and guide the guardian in fulfilling their fiduciary duties and responsibilities. We offer training sessions to our guardians in our office on how to prepare the initial and annual guardianship reports. We encourage open communication between us and the Guardian so that we can best serve the Guardian.

Guardianship for an Incapacitated Adult:

If a previously competent adult becomes incapacitated, physically and/or cognitively, and did not designate an agent in a Durable Power of Attorney or Healthcare Surrogate while competent this court proceeding will appoint a family member (or professional) as guardian. The guardian may be appointed and given legal authority to make financial as well as medical decisions for the incapacitated adult. In certain situations (i.e. car accident resulting in temporary incapacity) a guardianship may last for a short time until rights can be restored. In situations involving long-term incapacity a guardianship will remain in place until the incapacitated adult passes away. A guardian must be represented by an attorney. The guardian is responsible for preparing annual reports to the court.

We support and encourage family members of an incapacitated adult to accept the responsibility as guardian of a loved one. If, however, there is no living family or family is unable to accept the responsibility we work with the Court to find a qualified professional guardian.

Guardianship for a Minor:

If the parents of a minor (under age 18) die or become incapacitated it will be necessary for a legal guardian to be appointed to determine where the minor attends school, to provide informed medical consent and to administer the minor’s assets and income (i.e. Social Security benefits). If the parents of a minor have died and left the minor an inheritance a guardian of the property will be appointed. The guardianship will terminate when the minor becomes an adult.

If a minor has been injured in an accident and the settlement is greater than $15,000.00 it is necessary for a guardian to be appointed only of the property. Parents are still the natural guardians of their children and they continue to make decisions about where the child attends school, lives, and make their child’s medical decisions.

A guardian must be represented by an attorney. The guardian is responsible for preparing annual reports to the court.

Emergency Temporary Guardianship:

Emergency temporary guardianship is appropriate when an adult is either being financially exploited or, is in imminent physical danger which includes self-neglect. The temporary appointment of the guardian lasts for 90 days. Before the end of the 90 days it may be necessary to petition for a permanent guardianship if the situation has not been stabilized or if the adult continues to lack capacity to execute legal documents such as a Durable Power of Attorney and Designation of Health Care Surrogate (which serve as a less restrictive alternative). A guardian must be represented by an attorney. The guardian is responsible for preparing final reports to the court.

I have successfully had the Court grant emergency temporary guardianships which have helped many people be protected from self-neglect, abuse and financial exploitation.

Guardian Advocate for Persons with Disabilities:

Florida is unique as it has a specific law designed to help individuals born with a developmental disability who need some assistance in making medical, education and/or financial decisions. This proceeding is called ‘Guardian Advocate.’ Its goal is to enable a person born with a developmental disability in achieving their highest potential by being involved in making decisions that affect them with the assistance and guidance of a Guardian Advocate. Developmental disabilities include:

  • Autism
  • Cerebral Palsy
  • Down Syndrome
  • Intellectual Disability
  • Praeder-Willi Syndrome
  • Spina bifida
  • Phelan-McDermid Syndrome

Many parents like the guardian advocate option because their adult child’s legal rights are not removed. This means their child can still vote, get married, travel, etc. A guardian advocate is appointed to help the adult make informed decisions (medical and financial). A guardian advocate must be represented by an attorney except in certain situations where the guardian advocate is also the representative payee for Social Security benefits and the adult with the developmental disability has no other sources of income. The guardian advocate is responsible for preparing annual reports to the court.

Guardianship Guide for Persons with Disabilities

The Florida Bar Board Certified Elder Law
National Academy of Elder Law Attorneys
South Florida Legal Guide
Super Lawyers
Law Office of Stephanie L. Schneider, P.A.