Florida Adult Guardianship and Incapacity Proceedings

Is guardianship necessary if the person has a durable power of attorney or trust?

Not always. Florida law requires consideration of less restrictive alternatives, and a valid durable power of attorney, trust, health care surrogate designation, or other arrangement may adequately address some or all needs. The analysis depends on the document’s validity and scope, how assets are titled, whether the designated fiduciary is available and acting appropriately, and whether the arrangement addresses the person’s current personal and financial circumstances. A limited guardianship may still be considered if an alternative resolves only part of the problem.

Who decides whether an adult is incapacitated in Florida?

The circuit court makes the legal determination. After a verified petition is filed, the alleged incapacitated person is represented by counsel, and a three-member examining committee evaluates the person’s functional ability to exercise the rights identified in the proceeding. The court considers the committee reports and other admissible evidence before deciding whether incapacity exists and which rights, if any, should be removed.

When can a Florida court appoint an emergency temporary guardian?

An emergency temporary guardian may be appointed when an incapacity proceeding is pending and the court specifically finds an apparent imminent danger of serious harm to the person’s physical or mental health or safety, or a danger that property will be wasted, misappropriated, or lost without immediate action. Emergency authority is limited to the powers stated in the court’s order and is temporary. An emergency appointment should not be treated as a substitute for proving incapacity or addressing the longer-term need for guardianship.

What responsibilities does an appointed guardian have?

A guardian is a court-supervised fiduciary and may exercise only the authority granted by law and the court’s orders. Depending on the appointment, responsibilities may include arranging appropriate care, protecting property, preparing an inventory, maintaining financial records, filing plans and accountings, seeking approval for specified actions, avoiding conflicts, and keeping the ward informed to the extent appropriate. The precise duties depend on whether the guardian serves for the person, property, or both and whether the appointment is limited or plenary.