Families often wait too long to ask whether they need a guardianship attorney. The question usually surfaces after someone can no longer sign documents, handle finances, or make healthcare decisions.
By then, simpler options like a power of attorney no longer work because the person lacks the capacity to sign legal documents.
Guardianship in Florida requires court involvement, legal filings, and representation that only an attorney can provide. Here’s what you need to know about when to work with an attorney for guardianship.
Guardianship Removes Rights Through Court Process
Guardianship is the legal process by which Florida courts appoint someone to make decisions on behalf of another person who can’t manage their own affairs. The person needing help is called the ward.
The person appointed is the guardian.
Florida law treats guardianship as a last resort. The court system prefers less restrictive alternatives whenever possible because guardianship strips away fundamental rights.
What Rights Disappear Under Guardianship
Once a court finds someone incapacitated and appoints a guardian, that person loses specific rights that may include:
- Deciding where to live
- Controlling their money
- Making healthcare choices
- Signing contracts
- Getting married
- Voting
- Driving
The exact rights removed depend on whether the court orders limited guardianship or plenary guardianship. Limited guardianship takes away only specific rights that the ward can’t exercise safely. Plenary guardianship removes all rights.
When Less Restrictive Alternatives Don’t Exist
Florida courts require proof that less restrictive alternatives to guardianship won’t work before appointing a guardian. These alternatives include:
Durable power of attorney: Someone the person chose while still capable makes financial and legal decisions. This document must be signed before incapacity occurs.
Healthcare surrogate: Appoints someone to make medical decisions if the person becomes unable to communicate wishes.
Representative payee: The Social Security Administration assigns someone to manage benefit payments without court involvement.
Voluntary guardianship: Available only when the person still has enough capacity to request a guardian and consent to the arrangement.
Guardianship becomes necessary when these options either weren’t created in time or prove inadequate for the person’s current needs.
Types of Guardianship in Florida
Florida statute recognizes several types of guardianship based on who needs help and what decisions require a guardian.
1. Adult Guardianship for Incapacitated Persons
Adult guardianship applies when someone aged 18 or older lacks the capacity to manage at least some essential health and safety requirements or property.
The alleged incapacitated person must be examined by a three-member examining committee appointed by the court.
The guardianship process requires:
- Filing a petition with Florida courts
- Medical and functional evaluations by the examining committee
- Court appointment of an attorney to represent the alleged incapacitated person
- A hearing where evidence proves incapacity
- Court determines whether guardianship is established and what type
Guardian of the person makes decisions about living arrangements, medical care, and daily needs. Guardian of the property handles financial affairs, pays bills, and manages assets. Guardian of the person and property does both.
2. Guardian Advocate for Developmental Disability
A guardian advocate serves someone with a developmental disability who needs help with some decisions but doesn’t require a full determination of incapacity.
Florida law allows families to petition the court for a guardian advocate appointment without the person being declared legally incapacitated.
The process is less restrictive than full guardianship proceedings.
3. Emergency Temporary Guardianship
When someone faces immediate danger and waiting for regular guardianship proceedings would cause harm, Florida courts can appoint an emergency temporary guardian. This appointment lasts only 60 days but gives someone legal authority to act quickly.
Emergency temporary guardianship requires clear evidence that, without immediate action, the person will suffer harm.
Why Guardianship Requires an Attorney in Florida
Florida statute mandates attorney representation for guardianship. The guardian must be represented by an attorney licensed to practice law in Florida. This requirement applies to:
- Guardianship of the person
- Guardianship of property
- Combined guardianship
The only exception is guardian advocacy for developmental disabilities, where the person petitioning may proceed without an attorney.
The Court Also Appoints Legal Counsel
When someone files a petition to determine incapacity, the court appoints an attorney to represent the alleged incapacitated person. This legal representation protects the person’s rights during guardianship proceedings.
The person can choose to hire their own attorney in Florida instead of using the court-appointed attorney.
Complex Legal Process Demands Knowledge
The guardianship process in Florida involves multiple steps, strict deadlines, and specific documentation requirements. Missing deadlines or filing incorrect paperwork delays the process or results in dismissal.
Required court filings include:
- Petition to determine incapacity
- Physician statements
- Financial information
- Background checks
- Bond documentation
- Initial guardianship plan
- Regular reports to the court
An experienced guardianship attorney knows these requirements and handles filings correctly. They also know how to present evidence at the incapacity hearing and respond to objections from family members who disagree with the petition.
Situations That Trigger the Need for Guardianship Attorney
Incapacity Without Advance Planning
The most common scenario requiring guardianship involves someone who becomes incapacitated without creating a power of attorney or healthcare directives while still capable.
Without existing legal documents, no one has the authority to access bank accounts, sell property, or make healthcare decisions.
Banks won’t release funds. Hospitals require legal authority before discussing treatment with family. Guardianship provides the legal authority family members need to act.
Power of Attorney Proves Inadequate
Sometimes, power of attorney documents exist, but don’t solve the problem.
Guardianship may become necessary even when a power of attorney exists if:
- Banks or healthcare providers won’t accept the document
- The document lacks the needed powers
- The agent misuses authority or refuses to act
- The agent dies or becomes incapacitated themselves
Family Disputes About Care Decisions
Conflicts between family members often trigger the need for a guardianship attorney.
When families can’t agree, guardianship proceedings allow Florida courts to determine who can make decisions and what those decisions should be. The court appoints a guardian based on the ward’s needs rather than family preferences.
Financial Exploitation or Abuse
Emergency temporary guardianship can stop ongoing exploitation quickly. An experienced guardianship attorney can petition for immediate appointment of a guardian to protect remaining assets and prevent further harm.
No Willing or Appropriate Family Guardian Available
There are times when families realize someone needs a guardian, but no family member can serve. It often has to do with distance from the care home, relationships that are too damaged, or a lack of time or ability to handle guardianship responsibilities.
Florida allows professional guardians and public guardians to serve when family options don’t work.
What Happens During Guardianship Proceedings
Filing the Petition
The guardianship process starts when someone files a petition with the Florida courts. The petition must include specific information about:
- The alleged incapacitated person
- Why guardianship is needed
- Who should serve as a guardian
Florida statute requires the petition to list any known power of attorney, healthcare surrogate, or other existing legal documents.
Examining Committee Evaluation
Within five days after petition filing, the court appoints an examining committee of three members: At least one must be a physician.
The committee examines the alleged incapacitated person and reports findings to the court.
Then, each examining committee member submits a written report addressing whether the person can manage property or meet essential health and safety requirements. If the majority concludes no incapacity exists, the court dismisses the petition.
The Incapacity Hearing
If the examining committee finds incapacity in any respect, the court schedules a hearing. Both sides present evidence. The alleged incapacitated person has the right to attend, present testimony, and cross-examine witnesses through their attorney.
The court must find by clear and convincing evidence that the person is incapacitated before appointing a guardian.
Letters of Guardianship and Ongoing Duties
If the court appoints a guardian, the guardian receives letters of guardianship. This document proves legal authority to act on behalf of the ward.
The guardian must then:
- Complete required training within four months
- File the initial guardianship plan within 60 days
- Submit annual reports to the court
- Obtain court approval for major decisions
- Maintain bonds if required
- Follow all orders from the court
Failure to meet these legal responsibilities can result in removal as guardian.
The Cost of Waiting to Get Legal Help
Problems Multiply Without Legal Authority
Families who delay getting a guardianship attorney face mounting problems. Bills go unpaid because no one can access accounts. Medical treatment gets delayed because hospitals need legal authority. Property taxes become delinquent. Insurance lapses.
Emergency Petitions Cost More
Waiting until a crisis hits often means filing for emergency temporary guardianship. These rushed proceedings cost more in attorney fees and court costs than a regular guardianship filed proactively.
Lost Assets Can’t Be Recovered
Delay in obtaining guardianship allows financial exploitation to continue. Money stolen while families wait for legal authority is often gone forever. Quick action through a guardianship attorney minimizes losses.
Alternatives Still Worth Exploring
Even when guardianship seems necessary, an experienced guardianship attorney will evaluate whether less restrictive alternatives might work.
Can Existing Documents Be Fixed?
Often, financial institutions refuse power of attorney documents for technical reasons rather than legal ones. An attorney can work with banks to accept existing documents or help create new documents if the person still has sufficient capacity.
Does Voluntary Guardianship Apply?
Florida law allows voluntary guardianship when someone recognizes they need help and willingly petitions for their own guardian.
Voluntary guardianship works for people in the early stages of cognitive decline who understand they need someone to manage their affairs but still have the capacity to make that decision.
Representative Payee or VA Fiduciary?
For people whose only income is Social Security or Veterans Benefits, representative payee or VA fiduciary programs provide someone to manage benefit payments without full guardianship. These limited options cost nothing and avoid court involvement.
How to Choose the Right Guardianship Attorney
Look for Florida Guardianship Experience
General practice attorneys without guardianship experience often miss critical requirements or make procedural errors.
On the other hand, experienced guardianship attorneys handle these cases regularly. They know local judges, court staff, and how specific courts prefer filings.
Expect Clear Communication About Process
A good guardianship attorney explains the guardianship process in plain language. They should outline realistic timelines, potential challenges, and estimated costs upfront.
Guardianship proceedings typically take several months from petition filing to final appointment.
Verify They Handle Ongoing Representation
Some attorneys file guardianship petitions but don’t provide ongoing representation after appointment. Guardians need legal advice about annual reports, court approval requirements, and compliance issues throughout the guardianship.
Clarify whether the attorney will handle only the initial guardianship establishment or provide continuing legal representation as needed.
Get Guardianship Help in Northeast Florida
Florida guardianship lawyers handle guardianship matters throughout the state.
Firms guide families through Florida’s guardianship process, help evaluate whether less restrictive alternatives might work, and provide legal representation throughout guardianship proceedings.
Contact Berg Bryant Elder Law Group to discuss guardianship options and protect an incapacitated family member’s welfare.
