A guardian is a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. Florida’s Chapter 744 within the statutes is considered Florida’s “guardianship statute” and is the most common procedure used. While this most generally is applied to adults (persons over 18 years of age), this chapter requires that a guardian be appointed when a minor’s parents die or become incapacitated or if a child receives an inheritance or proceeds from a lawsuit or insurance policy exceeding $15,000.
Florida law allows both voluntary and involuntary guardianship. A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily petitions for the appointment.
There are two components to involuntary guardianship under Chapter 744 for adults:
1.A determination of incapacity (adjudication hearing), and
2.Transfer of rights to another (naming a guardian)
Florida utilizes an examining committee to review the ability of the alleged incapacitated person (AIP) and report their findings to the court. During the adjudication hearing the court may hear testimony from anyone regarding the capacity of the person. The attorney for the AIP may present other expert opinions or testimony in support of the AIP’s abilities. No one can lose his or her civil rights unless a judge orders them removed. If the court finds that the person does not lack capacity – in other words, the person is capable of exercising his civil rights – then the guardianship process ends.
Once the person’s incapacity has been determined by the judge, the court must consider whether less restrictive decision-making options are in place and will meet the needs of the person or is it necessary to appoint a guardian.