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The following is an abridged version of this topic. I have created a white paper on Florida's guardianship laws that go into more detail - which amount to nothing more than a license to kidnap and exploit the elderly, the disabled and our veterans who served America proudly - which you can read here. The white paper will open in its own window.

Disclaimer

This topic is Florida specific. If you are reading this in another state (such as Georgia, for instance) check your state's guardianship laws. While your webmaster has an Associate in Science degree in Legal Assisting, none of this information contained in this topic should be taken as legal advice. Like any other legal issue, consultation with an attorney who is licensed by the Florida Bar is highly recommended. (In other states, check with your state's bar association).

Guardianship defined

The Pinellas County Clerk of the Circuit Court defines guardianship as a legal arrangement under which a person (the guardian) has the legal right and duty to care for another (the ward) and his or her property.

In a guardianship, there are two key players:

• The Guardian who oversees the legal, financial and other affairs over a person called the Ward.

• The Ward is the incapacitated person who, by reason of physical or mental disability, is incapable of managing his or her own affairs.

Guardianships are run by attorneys, one that represents the guardian and one who represents the ward. This is a requirement according to the Florida Probate Rules.

Florida uses the term guardianship for its guardianship laws as codified in Chapter 744 of the Florida Statutes, which is Florida's main guardianship law. However, in other states it is either called guardianship, conservatorship (such as California) or guardianship in matters related to the person and conservatorship in matters related to the property (such as Georgia). The only exception is Louisiana, which uses the term interdiction for their guardianship laws and a guardian in Louisiana is called a curator. These terms basically mean the same thing, especially if you are reading this topic in another state such as California, Georgia or Louisiana for instance. Florida does have a conservatorship law pursuant to Chapter 747 of the Florida Statutes but Florida's conservatorship laws are related to persons that are missing and the criteria is set forth in Section 747.01.

However, the assistance of an attorney - preferably one who is licensed by the Florida Bar (or the bar in your state) and certified in elder law - is strongly recommended. In Florida, never pursue a guardianship on your own - only attorneys can file guardianships per the Florida Probate Rules. The only exception is a guardian advocate under Chapter 393 (Section 393.12) of the Florida Statutes, but doing so on your own is penny wise and pound foolish. Navigating Chapters 744 and 393 of the Florida Statutes as well as the Florida Probate Rules is akin to navigating Interstate 275 in the Tampa Bay region during the morning and evening commutes, which is why you need an attorney to guide you through the legal labyrinth.

How a Guardianship is Created in Florida

A person who has a significant interest in a person - such as a relative, for example - and is concerned about that person's welfare begins the process by first consulting with an attorney, in particular one who specializes in elder law or in wills, trusts and probate. Based on the consultation, the attorney recommends that a guardianship be created.

The attorney prepares the paperwork which is prescribed by the court in order to get a guardianship created. At the courthouse, the paperwork consists of three petitions:

• Petition to Determine Incapacity

• Petition to Appoint Guardian

• Application for Appointment of Guardian

Once the paperwork is filed with the court it begins a process by having the notice and a court order served on the alleged incapacitated person as well as his or her next of kin, which is done by the court appointed attorney for the alledged incapacitated person acting as an elisor. The notice is the Petition to Determine Incapacity and the court order is an order by the judge that appoints an examining committee and sets a date for a hearing. At this point the alleged incapacitated person will either have an attorney or one will be appointed by the court to represent the alleged incapacitated person at this stage.

Keep in mind that the respondent in a guardianship case is called an Alleged Incapacitated Person, or AIP. When the judge declares the respondent mentally incapacitated and the guardian is appointed as evidenced by the Letters of Guardianship, the respondent's status changes from an adult to a Ward of the State of Florida. Being declared a Ward has very serious legal ramifications incuding the loss of certain or all civil rights including the right to vote and the right to seek or retain employment among other things.

Each member of the examining committee examines the alleged incapacitated person to see if there is indeed an issue which prevents the person from managing his or her own affairs. At the end of the examination the examining committee member summarizes his or her findings in a report which is given to the judge. Once the judge has reports from all three members it is reviewed and a hearing is set to make a determination regarding the capacity of the alleged incapacitated person.

At the capacity hearing the judge will review the reports and hear any testimony. The outcome of this hearing will either be that (1) the person is indeed incapacitated and that a guardian is to be appointed or (2) the person is not incapacitated and that guardianship is not needed. If the judge rules that, based on the reports of the examining committee, the person is not incapacitated then that is the end of the proceedings right there.

In this scenario, the judge has reviewed the reports from the examining committee and the judge has ruled that, based on the reports and testimony, and the fact that no advance directives such as a durable power of attorney were found, the person is incapacitated. The next step is for appointment of a guardian to oversee the person's interests. The guardian can be a relative, but things can get messy here as to who would be appointed the person's guardian. A private professional guardian trolling for clients can object to the proposed guardian exploiting a loophole, basically by questioning the proposed guardian in court. If the judge agrees, the guardian so appointed is not the relative that was hoped for - instead, it turns out to be a private professional guardian who may or may not have the Ward's interests in mind.

Once the guardianship is ordered, the guardian receives court documents that appoint him or her as a person's legal guardian, which are called Letters of Guardianship. As for the Alleged Incapacitated Person, his or her legal status is changed from an adult to a Ward of the State of Florida.

Now that the guardianship has begun, the guardian's responsibilities do not end at this point. Working with the attorney, the guardian has to file initial reports and accountings with the court within a 60-day time period. Thereafter and as long as the guardianship lasts, these reports and accountings are filed with the court on a yearly basis.

Rights of the Ward

The rights of a person who is under a guardianship - who is called the ward - can be summed up in one sentence:

A ward has much less legal rights than a convicted felon.

The ward practically loses everything that we take for granted: The privilege to hold a driver's license, the right to vote, the right to enter into contracts, the right to sue and be sued, the right to travel, the right to determine where you live, the right to make medical decisions on your own, the right to look for or hold a job (seek or retain employment), the right to manage his or her financial affairs, the right to possess or purchase a firearm ... and the list goes on and on.

When only certain rights are taken away, the guardianship is a limited guardianship. However, when all rights are taken away the guardianship is a plenary guardianship.

If the ward happens to have a professional guardian appointed, then that guardian can restrict who the ward may see - even if it's the ward's relatives. Not only can a professional guardian restrict who the ward can see (which is isolating the ward), a professional guardian can relocate the ward to an institution and sell the ward's property. In other words, a professional guardian can destroy a family's relationship.

Isolate, Liquidate and Medicate

Nine times out of ten, professional guardians - particularly the "bad apple" professional guardians who seldom have an interest in the Ward's welfare - will exert total control over a Ward for the professional guardian's benefit, not the Ward's.

Isolate: Relocate the Ward from his or her home and place the Ward in a care facility. That can be a nursing home, an assisted living facility or a group home. Confiscate any communication devices the Ward may have including the cell phone and issue a standing order to the facility banning anyone including relatives from visiting the Ward. Also issue a standing order to the care facility prohibiting the Ward from leaving the premises. In fact, restrict the Ward from leaving the memory care unit.

Liquidate: Sell the Ward's property including the home, car, and personal possessions. Also confiscate any assets the Ward has in banks, credit unions and brokerages. Proceeds go to the care facility housing the Ward with the professional guardian taking a good cut of the proceeds.

Medicate: Force the ward into taking medication or undergoing medical treatment at the professional guardian's whim. Don't forget, care facilities have the medication to manage residents who the care facility thinks are uncooperative in any way, along with the resident physician on staff to make the prescription. That medication in question is called Haldol. Remember the Haldol shuffle?

How long do Guardianships last?

It can be summed up in one word, especially if a professional guardian is involved: FOREVER.

A ward has the right to petition the court for review of competency if the ward has recovered to the point that the ward can manage his or her own affairs once again. In reality, it does not happen as professional guardians have at their disposal a psychiatrist that will give perjured testimony that the ward cannot manage his or her own affairs. After all, a ward with significant assets is a professional guardian's working cow, managed for the professional guardian's own personal benefit.

Guardianships for Persons with Special Needs and Mental Health Issues

Florida's main guardianship laws are codified in Chapter 744 of the Florida Statutes. However, guardianship for persons with special needs and persons with mental health issues are covered in two specific Florida Statutes as a Guardian Advocate: Chapter 393, specifically Section 393.12 which deals with developmental disabilities and Chapter 394, specifically Sections 394.451 to 394.47892 which is Florida's Mental Health Act, commonly known as the Baker Act. Both laws provide for the appointment of guardian advocates for those that have special needs or mental health issues.

Chapter 393, specifically Section 393.12, is for persons with special needs, specifically those who are about to become an adult upon turning 18. There are specific criteria in Section 393.063 that has to be met in order to file for a Guardian Advocate according to Chapter 393. However, there is no three person examining committee (a doctor's statement takes the place of the examining committee in a Section 393.12 petition) and there is no judgment of capacity rendered in court. The petition for Guardian Advocate under Section 393.12 is the only guardianship petition that can be filed without an attorney per the Florida Probate Rules. Again, attempting to file a guardianship petition under Section 393.12 without the assistance of an attorney is akin to navigating Interstate 275 in the Tampa Bay region during the morning and evening commutes due to the complexity of Section 393.12 and the corresponding Florida Probate Rules, which is why you as a parent of a child with special needs should consult with an attorney before taking this action for your special needs child.

On the other hand, Chapter 394 (specifically Sections 394.451 to 394.47892) is for persons with mental health issues, as Chapter 394 is Florida's Baker Act. If after the 72 hour Baker Act hold a psychiatrist decides that the patient should be involuntarily committed to a mental health facility for up to six months and the patient lacks capacity to consent to treatment, the facility files the court petitions for involuntary commitment and at the same time a sperate petition is filed to declare the patient incapable of making his or her own treatment decisions and to appoint a guardian advocate. The petitions under Chapter 394 are filed by an attorney representing the mental health facility where the patient is being held.

What can you do to see that your loved one get his or her wishes?

First, let me say this:

KEEP YOUR LOVED ONE OUT OF PROBATE COURT!
KEEP YOUR LOVED ONE OUT OF A CARE FACILITY SUCH AS A NURSING HOME!
AND NEVER CONSIDER ADULT GUARDIANSHIP IN THE FIRST PLACE!

Second, you and your loved one should have a conversation with your attorney, one that is licensed by the Florida Bar and that specializes in elder law as well as wills, trusts and probate. This would be a great time for you to draw up your advance directives if you do not have them or to update your advance directives if you have them already. There are many ways that you can provide for your loved one without having to resort to the court system, and your attorney can help you in that regard. Besides, meeting with your attorney costs money but it is time and money well worth spent.

Your advance directives action plan when you meet with your attorney: Durable Power of Attorney, Designation of Health Care Surrogate, Living Will, Will and Declaration of Pre-Need Guardian.

Third, unfortunately there are attorneys out there that say that guardianship will preserve the assets. If your attorney says so, find another attorney immediately. Guardianship is not the cure-all for asset preservation; instead, guardianship is for people who have lost the ability to manage his or her own affairs by reason of illness, whether it may be physical, mental or a combination of the two, and for where no advance directives were prepared.

Fourth, for you parents of children with special needs and your children are about to turn 18: NEVER consider guardianship advocate under Chapter 393 of the Florida Statutes in the first place! As the Center for Estate Administrative Reform says, never consider any form of guardianship for a loved one! Even with the best well planned petition for guardian advocate for your child with special needs under Chapter 393, a judge could potentially end up appointing a professional guardian advocate if no suitable guardian advocate can be found or, worse yet, rule that you cannot petition for a guardianship advocate under Chapter 393 as you don't meet the criteria under the law and you must file for a guardianship under Chapter 744 instead which means having an attorney and being subject to the three person examining committee, not to mention the potential of having a total stranger private professional guardian overseeing your child with special needs. Instead, a conversation with your attorney regarding what you can do for your special needs child outside of any form of guardianship is much better.

Fifth, keep in mind that a private professional guardian may or may not have your loved one's interests in mind. There are good private professional guardians out there that really do care about the wards entrusted under their care; unfortunately, there are the "bad apple" professional guardians out there that do not have an interest for the wards entrusted to their care.

Again, I am going to say this:

KEEP YOUR LOVED ONE OUT OF PROBATE COURT!
KEEP YOUR LOVED ONE OUT OF A CARE FACILITY SUCH AS A NURSING HOME!
AND NEVER CONSIDER ADULT GUARDIANSHIP IN THE FIRST PLACE!

Once a petition to determine capacity is filed with the court it is really the end of your loved one's relationship. Besides, people who got served with papers determining a person's capacity to manage his or her own affairs have gone to major extremes to save their dignity and respect such as leaving the United States and renouncing American citizenship. After all, renunciation of American citizenship is a gravely serious matter.

Links to More Information

My white paper on Florida's guardianship laws - a must read!

NOTE:The following links below take you out of the EdwardRingwald.com presence and will open in a new window. No liability is assumed for the information contained therein.

A must see: National Association to Stop Guardian Abuse. Plenty of information, stories and resources.

Another must see: Americans Against Abusive Probate Guardianship. Another treasure trove of information and resources. NOTE: Website is inactive - link goes to an archived version of the site at the Internet Archive.

The Retirement Nightmare: How To Save Yourself From Your Heirs And Protectors - A book written by Diane Armstrong, Ph.D. Information and ordering the book is available at Amazon. This is one book that needs to be on your bookshelf when you plan for retirement! NOTE: Website link goes to an archived version at the Internet Archive; Amazon link goes to book information and ordering page at Amazon.com.

Guardianships and the Elderly: The Perfect Crime - Another great book by Dr. Sam Sugar, MD. Excellent information on how to prevent an unwanted guardianship in the very first place. Like The Retirement Nightmare book, this book also needs to be on your bookshelf when you plan for retirement! NOTE: Link goes to book information and ordering page at Amazon.com.

We're Here to Help: When Guardianship Goes Wrong by Diane Dimond. Like the two other books mentioned above, this needs to be on your shelf or your iPhone. An excellent investigative work on guardianships!

The Center for Estate Administration Reform - In the war against guardianship abuse!

Movies and Documentaries about Guardianship

All links in this section go to entries at the Internet Movie Database and will open in their own window.

I Care a Lot (2020)
The Guardians (2018) - documentary by Billie Mintz
The Bad Guardian (2024)

If you are concerned about your loved one, just remember this:

GUARDIANSHIP IN FLORIDA IS A LICENSE TO KIDNAP AND EXPLOIT THE ELDERLY AND THE DISABLED AS WELL AS OUR VETERANS WHO PROUDLY SERVED AMERICA IN THE UNITED STATES ARMED FORCES!