The Court will find a limited guardianship is appropriate if the Court determines the Ward lacks the capacity to do some, but not all, of the tasks necessary to care for the incapacitated individual and their property; and if the individual does not have pre-planned, written instructions for all aspects of their life.
The Court will appoint a plenary Guardian to exercise all delegable legal rights and powers of the adult Ward after the Court makes a finding of incapacity. Wards in plenary guardianships are unable to care for themselves.
Guardian of the Person
The Guardian of the person has the authority to exercise only the personal rights that have been removed from the Ward by the Court and delegated to the Guardian.
The rights that may be removed from a person and delegated to a Guardian include the right to contract, to apply for government benefits, to sue and defend lawsuits, to manage property or to gift or dispose of property, to determine their residence, to consent to medical or mental health treatment, and to make decisions concerning the Ward’s social environment.
The Guardian of the person has the responsibility of filing with the Court the Initial Plan and the Annual Plans.
Guardian of Property
The Guardian of the property has the authority to exercise only the rights that have been removed from the Ward by the Court and delegated to the Guardian. However, the Guardian’s authority is limited to the Court’s permission. The Guardian of the property does not have the authority to sell, transfer, mortgage or donate any of the Ward’s property without prior permission from the Court. It will be up to the Court to determine if any proposed transactions are appropriate for the Ward.
Once Letters of Guardianship have been issued, property belonging to the Ward, such as bank accounts and home(s), may need to be retitled or registered in the name of the guardianship, but not solely in the Guardian’s name. The Guardian of the property has the responsibility of filing with the Court the Initial Inventory and Annual Accounting.
Guardian of the Person and Property
The Guardian of the person and property has been given the responsibility by the Court to make decisions regarding both the personal and property rights of the Ward.
Initiating Guardianship Proceedings
Why Would Someone Initiate a Guardianship Procedure?
Guardianship is the process designed to protect and exercise the legal rights of individuals whose functional limitations prevent them from being able to make their own decisions and have not made implemented contingency plans. People who need guardianship may suffer from mental or physical conditions that cause functional limitations.
What is the Burden of Proof?
The Petitioner has the burden of proving the partial or total incapacity of the alleged incapacitated person by “clear and convincing evidence.” Smith v. Smith, 917 So. 2d 400 (Fla. 5th DCA 2005).
What Rights can be Taken Away from a Person if a Guardian is Appointed?
This primarily depends on what time of guardianship being sought. If the Guardianship being sought is seeking to be a Guardian of the Person, the rights that may be removed from a person and delegated to a Guardian include the right to contract, to apply for government benefits, to sue and defend lawsuits, to manage property or to gift or dispose of property, to determine his or her residence, to consent to medical or mental health treatment, and to make decisions concerning his or her social environment.
If the guardianship being sought is Guardian of property, the only rights that are removed are solely related to property. However, the Guardian of property will not have the authority to sell, transfer, mortgage or donate any of the ward’s property without prior approval from the Court.
What are the Annual Requirements of a Guardian?
To ensure the Guardian is acting in accordance with the law, Guardians are required to submit reports to the Court. These reports help the Court supervise the affairs of the Ward and to monitor the actions of the Guardian.
A failure on the part of the Guardian to comply with any requirement may result in the Guardian having to appear before the Court to explain his/her failure to properly fulfill their duties. This may result in sanctions against the Guardian including removal as Guardian or any other action the Court may deem appropriate.
As the Guardian of the person, the Guardian must complete and submit to the Court the Annual Plan. The Annual Plan must include the current location of the Ward, the Ward’s current condition, the Ward’s needs, and whether there are any changes expected in the upcoming year.
The Annual Plan provided by the Guardian must also include a report by the Ward’s physician that should include an evaluation of the Ward and a statement of the current level of capacity in addition to any rehabilitative services planned for the upcoming year.
Do Guardians Get Paid? A Guardian who has rendered services to the Ward or to the Guardian on the Ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward. (Fla. Stat. 744.108).
How Much Guardianship Proceedings Cost?
The costs vary on a case-by-case basis. The person initiating the guardianship proceeding is responsible for the filing fees. The costs for the examining committee, Court Appointed Guardian and even the attorney fees for the Guardian can be paid form the Ward’s estate, through Order of the Court, if there are sufficient funds.
Guardianship litigation often involves many medical examiners and many lawyers so costs and fees can get quite high quickly. It is critical to have competent legal counsel on your team from the beginning in an effort to navigate you through the law to keep costs and fees as low as possible.
Contesting Guardianship Proceedings
Any person, including the Ward, through his/her attorney or record, can object to the guardianship proceedings, incapacity proceedings or the appointment of a specific person to serve as Guardian. Once an Objection to the proceedings is filed, the case becomes adversarial, and an evidential hearing is required before the Court determine capacity and/or appoint a Guardian.
If, for whatever reason, you were not involved in the underlying action and you find out later, incapacity was determined and a Guardian has already been appointed, you can still file the appropriate Motion to “undo” the pending Orders of the Court. Most likely, one would file a Motion to Cacate and/or Set Aside the Order of the Court for a myriad of reasons, including but not limited to:
- excusable neglect
- misconduct of a party (breach of fiduciary duty), or
- lack of service of process (due process violations)
Removing the Guardian
If the appointed Guardian has failed or neglected to perform their duties, mismanaged the estate, or for some other reason is not suitable to continue serving as the Guardian, anyone may ask that the Guardian be removed. The Judge will then decide whether there is a legal basis to remove the Guardian and if so, to appoint a new Guardian. However, breach of fiduciary duty and removal proceedings are very litigious. Florida Statute 744.474 outlines several reasons why a Guardian might be removed from his or her duties. You need aggressive legal counsel in your corner.
At the Horton Law Group, we treat our clients like family. At the Horton Law Group, P.A., we are known for being “bulldogs” in the courtroom. We are confident that you will be happy with your decision to hire the Horton Law Group to represent you during this difficult time. Please contact the Horton Law Group P.A. at 561-299-0018 to schedule a free 30-minute consultation with a qualified member from our team.
It should be noted, all Guardians are required to account, financially, on an annual basis, for all monies of the Ward. Failure to comply may warrant sanctions by the Court. (Fla. Prob. R. 5.660).
Should you prevail in a breach and removal proceeding, you may be entitled to recover your attorney fees from the guardianship estate and/or the removed Guardian, personally, this is called surcharge.
Restoration of Rights of a Ward
To restore legal capacity to a Ward, the Guardian must take several steps. First, the Guardian (or the Ward) must file a “Suggestion of Capacity” with the Court, demonstrating the Ward is now capable of exercising rights which have been priorly removed from them. The Court will then appoint a physician to test whether the Ward has regained capacity. (Fla. Stat. 744.464).
Upon the physician completing the determination of the Ward’s capacity, the Court will decide whether to honor the request. The Court may grant partial restoration of rights instead of a full restoration. In the event that only some of the Ward’s rights are restored, then the Guardian will need to prepare and file a revised Guardianship Plan that accounts for the new responsibilities.
If the Court restores full capacity to the Ward, the Guardian must file any remaining legal and Guardian fee Petitions, a Final Summary of the Ward’s financial affairs, and the distribution of the funds and property held in guardianship. Also, all Guardians are required to maintain relevant records for at least three (3) years following the discharge of guardianship.
Procedure to Restoring the Rights of a Ward:
Any interested person, including the Ward, may file a Suggestion of Capacity. The Suggestion of Capacity must state that the Ward is currently capable of exercising some or all of the rights which were removed. (Fla. Stat. 744.464).
Upon filing a Suggestion of Capacity, the Court will then schedule a hearing. Per Florida Statue 744.1095, a hearing on the restoration of capacity of the Ward allows the Ward to remain silent, refuse to testify, to testify, to present evidence, to call witnesses, to confront and cross-examine witnesses; and to have the hearing open or closed. (Fla. Stat. 744.1095).
At the end of the hearing, the Court shall make specific findings of fact and based on the standard of preponderance of the evidence (more likely than not), enter an Order denying or granting the Ward’s restoration of rights. If the Court is satisfied with the examination of the Ward, and if no timely Objections to the Suggestion of Capacity are filed, the Court must enter an Order restoring capacity of the Ward within 30 days. (Fla. Stat. 744.1095).
The Ward has the burden of proving by a preponderance of the evidence that the restoration of capacity is warranted. The Court may also restore some rights, but rule that certain rights be retained by the Guardian. (Fla. Stat. 744.464).