Guardianship

Guardianship

A guardianship is a legal proceeding in which a guardian is appointed by the court to exercise the legal rights of either an incapacitated person, a developmentally disabled person, or a minor. A guardian of the person makes decisions and takes action regarding the well-being of the person subject to the guardianship. A guardian of the property is responsible for managing the finances and property of the person subject to the guardianship.

Guardianship Due to Incapacity

This involves appointment of a guardian for a person who has been determined by the court to be incapacitated. See Fla. Stat. 744.3201 and Florida Probate Rule 5.560.

Guardian Advocacy for Developmentally Disabled Person

A guardian advocate can be appointed when a person with a developmental disability is unable to manage his or her affairs. To qualify, the person with a developmental disability must have a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida or Prader-Willi syndrome; that manifests prior to the age of 18; and constitutes a significant disability that can reasonably be expected to continue indefinitely. See Fla. Stat. 744.3085 and Florida Probate Rule 5.649.

Guardianship Due to Minority Florida Statute

A guardianship must be established for the property of a minor child when money or property value of over $50,000 is to be paid or distributed to the minor. The court may also appoint a guardian before approving a net settlement over $15,000. This may occur through inheritance or through a settlement of legal action. Guardianship of the person of a minor child may need to be established if both natural parents are deceased, incapacitated, or unavailable, such a parent being in the military. See Fla. Stat. 744.387 and 744.3205, also, Florida Probate Rules 5.555 and 5.636.

Other types of Guardianships

A VA Guardianship is available for veterans and others who are entitled to receive benefits from the U.S. Department of Veterans Affairs. A Voluntary Guardianship, see Fla. Stat. 744.341, is initiated when a person who, though mentally competent, is incapable of managing their assets by reason of age or physical infirmity voluntarily petitions the court for appointment of a guardian of the property.

Guardianship Forms
Attorney Requirement/Exception

Every guardian shall be represented by an attorney admitted to practice, however, a guardian advocate is not required to be represented by an attorney unless otherwise required by law or the court. See Florida Probate Rule 5.030(a)

Reports Guardians Are Required to File

The guardian of the person is required to file an initial guardianship plan and an annual guardianship plan. The guardian of the property is required to file an inventory and an annual financial return. Reports should be filed with:

Report Due Dates

The initial inventory and/or initial plan must be filed within 60 days after letters of guardianship are issued.

The annual plan is due on first day of the fourth month after the anniversary month of the date letters of guardianship are issued.

The annual accounting is due the first day of the fourth month after the anniversary month of the date letters of guardianship are issued.

Audit fees Due on Inventory and Annual Accounting

The audit fee for the initial inventory is $85, if the assets of the ward exceed $25,000. The audit fee for the annual financial return ranges from $20 to $250, depending on the value of the estate. There is no fee for filing an initial or annual plan.

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