April 26, 2022

Guardianships for Seniors in Florida

Posted by Bishop L. Toups | In Elder Law

What is A ‘Senior’ or ‘Adult Guardianship’?

When a person is no longer able to manage their finances or take care of their own health care needs, an adult guardianship in Florida may need to be established. Thanks to advances in modern medicine, more and more of us are living longer. As we all live longer, it makes it much more likely that we face situations where we are unable to mentally or physically take care of our finances or health care needs.

Once an adult in Florida reaches a point where they cannot manage their own finances or health care, family members or friends need to evaluate whether establishing an adult guardianship is appropriate. We believe that adult guardianships should be used as a last resort since the biggest disadvantage of a guardianship is that guardianship proceedings involve the court system and intrude into the privacy of the client and the client’s family.

The first step in determining whether an adult guardianship in Florida is appropriate or not is to look at whether the disabled or incapacitated senior executed estate planning documents that would allow the senior’s family members or friends to make financial and health care decisions for them. These documents in Florida are called the Durable Power of Attorney and Health Care Surrogate. If the senior has a well drafted Florida Durable Power of Attorney and Health Care Surrogate, it’s unlikely that an adult guardianship in Florida will be necessary.

However, it’s often the case that people will try to do their own estate planning, or they have out of state estate planning documents that are not legally sufficient here in Florida. These situations will often require the establishment of an adult guardianship in Florida if the senior lacks the capacity to execute new, legally sufficient Florida estate planning documents.

If you have a loved one who may require an adult guardianship here in Florida, the skilled guardianship attorneys at Daily, Montfort & Toups can help guide you on whether an adult guardianship is appropriate for your loved one.

We are a Veteran owned law firm and have offices in Sarasota, Venice, St. Petersburg, Osprey, and Clearwater, Fliroda. You can schedule your free consultation today.  

Advantages of Guardianships in Florida

The primary advantage of a guardianship is that the court oversees the caring of the senior who is disabled or incapacitated. This is especially important when there are family issues/drama and the disabled or incapacitated senior has assets. The court will require that the appointed guardian file periodic financial disclosures. Periodic financial disclosures ensures that the guardian is correctly managing the guardian’s finances since the guardian will know that the court and any interested family members will be able to review the financial disclosures.

The court can also step in to prevent delays when the disabled or incapacitated senior is not receiving the proper care. The guardian must provide the court with a care plan that outlines the care the senior is going to receive. If there’s a delay or an issue with the care plan, the court can step in to make sure that the disabled or incapacitated senior is receiving the right amount of care.

Disadvantages of Guardianships in Florida

The primary advantage of a guardianship in Florida is also the primary disadvantage. Anything involving the court system here in Florida is expensive, time consuming, stressful, and ends up making attorneys a lot of money. The expense and stress can add fuel to the flames of preexisting family strife and conflict. Involvement with the court system also means that there will be an intrusion of privacy both for the senior and the senior’s family.


Common Questions Around Guardianships in Florida


What does a guardian do in Florida?

A friend or family member who is appointed to serve as a guardian for a disabled or incapacitated senior will be either given control of the senior’s person, property, or both. When the senior is found to be completely incapacitated by the court, the court will appoint the guardian as the plenary guardian, meaning that the guardian will have full control over the senior’s property and health care. If the court finds that the senior does not need complete assistance, then the court will appoint the guardian to serve in a limited role where the guardian will only be able to perform specific tasks for the senior (e.g. paying the senior’s bills).

Is a guardianship always necessary in Florida when someone becomes incapacitated?

No. If someone does proper estate planning during their lifetime here in Florida, then it is very unlikely that a guardianship will ever be needed.

A proper estate plan includes a Florida Durable Power of Attorney, Florida Health Care Surrogate, and sometimes a Revocable Living Trust. Guardianships are typically only needed when someone becomes incapacitated and either do not have these documents or the documents they do have are not legally sufficient.

How does the court determine incapacity for a guardianship?

In Florida the court will appoint an examining committee to examine the alleged disabled or incapacitated senior. The examining committee consists of three health care professionals who have a significant amount of experience determining capacity. The examining committee will evaluate the senior by conducting a three part assessment: a physical examination, a mental health examination, and a functional assessment.

How long does a guardianship take to set up in Florida?

A typical guardianship takes a number of weeks to set up here in Florida. Sometimes this process will take too long if the incapacitated senior needs immediate care to protect their health, safety, or their property. The courts will sometimes allow an emergency temporary guardian if the court finds that there is imminent danger of serious harm to the senior or his or her property.

How much do guardianships cost in Florida?

Guardianships are very expensive since it involves the court system. There are court filing fees, fees that must be paid to the three members of the examining committee, and both the incapacitated senior and the person petitioning for guardianship (typically a family member or friend) will have separate attorneys. A routine guardianship will run anywhere from $6,000 to $10,000 here in Florida. A contested guardianship can be even more expensive.

How long do guardianships last in Florida?

Guardianships typically last until the disabled or incapacitated senior regain capacity. That means if the senior does not regain capacity, then the guardianship will last for the rest of their life.

If you have a loved one who may require an adult guardianship here in Florida, the skilled guardianship attorneys at Daily, Montfort & Toups can help guide you on whether an adult guardianship is appropriate for your loved one.

We are a Veteran owned law firm and have offices in Sarasota, Venice, St. Petersburg, Osprey, and Clearwater, Fliroda. You can schedule your free consultation today.

Bishop L. Toups

Bishop L. Toups is an estate planning, elder law, and tax attorney in Southwest Florida.

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