Our Gainesville FL Guardianship Lawyers are Here for You

When a person lacks the capacity to care for themselves or make decisions, Florida law provides a way for their family (or a professional guardian) to be appointed as their legal guardian and to make decisions for the incapacitated person (known as the ward). Depending on the situation, there are different types of guardianship proceedings

Incapacity Guardianship

If the individual (known as the “proposed ward”) lost capacity due age or an accident, the guardianship court will appoint an examining committee to conduct an evaluation and complete detailed report regarding the mental state of the ward, and each member of the examining committee will give an opinion on whether a guardian should assume the rights of the ward. Rights that can be transferred to a guardian include the right to manage finances, the right to make medical decisions, and the right to determine residency. If the medical professionals on the examining committee agree that the proposed ward lacks capacity, the guardianship court will appoint a guardian to act for the ward.

There is an “emergency guardianship” proceeding available that can secure letters of guardianship prior to the examining committee evaluation if there is an imminent threat to the person or property of the proposed ward.

If the proposed ward has a developmental disability from childhood the examining committee can sometimes be avoided through a proceeding known as a “guardian advocacy,” where medical evidence of the developmental disability can be substituted for the examining committee report. A Gainesville FL guardianship attorney at Florida Probate Law Group can help you get specific answers about how you can secure guardianship over a family member who needs your help.

Minor Guardianship

Apart from incapacity guardianship, Florida law also provides for the guardianship of minor children. Minor guardianship can be used to gain rights over a minor when parents are unavailable to raise the child.

Additionally, when a minor child is to receive a sum of more then $15,000.00, Florida law requires that a “guardian of the property” be appointed to oversee the minor’s funds. Our flowchart here describes the rules for minor settlements in Florida. The guardianship court will protect the child’s money in a restricted depository or court approved annuity, and the guardian will only be able to spend money for the minor with the court’s permission.

Qualifications and Duties of Guardians

In Florida, guardians cannot have a felony conviction, and are subject to a background and credit check prior to appointment. Courts may require that a guardian post a bond depending on the assets of the ward and the background of the guardian.

Guardians are also required to enroll in an 8 hour guardianship education course and file yearly guardianship plans and accountings with the court. Our blog article here provides more detail regarding the responsibilities of a guardian.

Professional Guardians

If a family member is unwilling or unable to serve as guardian (or would prefer the convenience of using a third party to administer the guardianship), a professional guardian can be appointed by the court to oversee the responsibilities associated with caring for the ward. Professional guardians are licensed and bonded and generally knowledgeable in the various requirements of serving as guardian. There are several advantages to using professional guardians, including the ability to avoid yearly red tape and court filings, and the ease of having a professional guardian appointed that results from their experience and the trust placed in professional guardians by local judges.

Gainesville FL Guardianship Attorney

Florida Probate Law Group has experience securing guardianship for families all over the state. Our Gainesville FL guardianship attorneys have the knowledge and experience to help your family with a guardianship case in any jurisdiction, from the keys to the panhandle and every city in between. We work in every county in the state, charging flat fees and never billing by the hour. That means you know how much you will pay at the outset of the case, and that our lawyers will never come back asking for more money. Call us today at (352) 354-2654 or email info@floridaprobatelawgroup.com to learn more about your guardianship case and how we can help.

Child settlements requiring a guardian ad litem in Florida can slow down the resolution of a case, however it is possible to have this requirement waived. In many child injury claims, it is within the court’s power to require a guardian ad litem to submit an opinion on the adequacy of a proposed settlement. While the intention of this rule is good, securing a GAL report may be redundant and can sometimes be avoided. Although Florida Statute section 744.3025(1)(b) provides that a guardian ad litem (GAL) is to be appointed when a minor’s settlement equals or exceeds $50,000.00, section 744.3025(1)(e) dispenses of the requirement if a guardian of the minor is appointed and the guardian has no potential adverse interest.

Because minor settlements netting more than $15,000.00 to the minor already require a guardian of the property (a different role than a GAL) to be appointed, the exception contained in section 744.3025(1)(e) is applicable more often than not. Section 744.3025(1)(e) reads as follows: “A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor. A court may appoint a guardian ad litem if the court believes a guardian ad litem is necessary to protect the interests of the minor.”

Thus, when a guardian of the property with no adverse interest to the minor is appointed to facilitate the settlement, the court may waive the requirement for a GAL.

Florida Probate Rule 5.636(d) supports this interpretation of the statute stating that a GAL shall be appointed when the settlement exceeds $50,000.00, “IF (a) there is no court appointed guardian of the minor; (b) the court appointed guardian may have an adverse interest; OR (c) the court determines the representation of the minor is otherwise inadequate.”

In determining whether the guardian of the property has a conflict of interest, we must ask if that guardian would benefit in any way from accepting an inadequate settlement on behalf of the minor. The most common conflict of interest is when the guardian of the property has their own claim arising from the same incident as the minor’s claim (typically when the guardian of the property is a parent). In such a case the guardian and the minor may divide a limited pool of settlement funds. In such a case, a GAL should be appointed.

For more information on child settlements, see our child injury flowchart here.

If you have questions about guardianship issues affecting your settlements, call (352) 354-2654 or email cdavid@floridaprobatelawgroup.com.