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How to become a Florida Guardian?

The process to become a Florida Guardian varies depending on the type of guardianship needed. In Florida, you can be the Guardian of an Adult, the Guardian of a Minor, or a Guardian Advocate. A Guardian is given the legal authority to make decisions on behalf of someone else. The most extensive guardianship process is the process of becoming the Guardian of an Adult. An adult needs a Guardian when he or she can no longer make decisions for themselves because of a mental illness or deficiency. Becoming the Guardian of a Minor or a Guardian Advocate, are much less in-depth processes. A Guardian of a Minor is a person given the powers and responsibilities of a parent. A Guardian Advocate is a Guardian of an individual with a developmental disability. 

Becoming the Guardian of an Adult in Florida

The process to become a Guardian of an Adult in Florida begins by retaining a Florida Guardianship Attorney. In Florida, you cannot apply to become someone’s Guardian or serve as a Guardian without being represented by an attorney. Once you have retained an attorney, you will work with your attorney to prepare the initial guardianship documents to file with the Court. At the Law Office of David M. Goldman, you will be given a Guardianship Questionnaire to fill out. The Questionnaire will provide your attorney with all necessary information. Your attorney will then prepare the following documents for you to review and sign. Once complete, these documents are filed with Court, which officially starts the guardianship process with the Court.

  1. Petition for Appointment of Guardian- The Petition for Appointment of Guardian asks the Court to appoint someone a Guardian. This petition also tells the Court why you believe the individual needs a Guardian, and what assets, if any, they may have.
  2. Application to Become Guardian- The Application to become Guardian tells the Court you are eligible to be a Guardian under Florida Statute 744.309.
  3. Oath- The Oath is a certification you will faithfully perform your duties as Guardian. 
  4. Petition to Determine Incapacity- The Petition to Determine Incapacity asks the Court to evaluate an individual’s mental capacity. Before the Court appoints a Guardian, the Court must decide an individual has a diminished mental capacity. A diminished mental capacity prevents an individual from being able to make meaningful decisions from him or herself. 

Once these documents are filed with the Court, the Court appoints an attorney to represent the individual who is the subject of the guardianship. During the initial guardianship process, before a Guardian is appointed, the individual you are seeking guardianship of is called the Alleged Incapacitated Person (AIP).  The Court Appointed Attorney is tasked with informing the AIP of the guardianship proceedings, and advising the Court whether a Guardian is needed and who should be appointed the Guardian. 

The Court also appoints a three-person examining committee. The three-person examining committee is comprised of at least one medical doctor.  Under Florida Statute 744.331, the other members “must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion.” The examining committee evaluates the AIP’s mental capacity and advises the Court of whether the AIP needs a guardian. 

Once the Court Appointed Attorney informs the AIP of the guardianship, and the examining committee completes their evaluations, a hearing is held before the Court. At the hearing, the Court decides whether the AIP lacks the mental capacity to make their own decisions based on the reports of the Court Appointed Attorney and examining committee. If the Court finds the AIP cannot make their own decisions because of a dimensioned mental capacity, the Court will then appoint a Guardian for the AIP. Once the Court determines the AIP lacks mental capacity and is appointed a Guardian, they are called the Ward.

The process to become the Guardian of a Minor in Florida begins the same way as becoming the Guardian of an Adult. However, it differs in that a Petition to Determine Incapacity is not required nor is an examining committee appointed. The reason an examining committee is not needed is that it is not a question whether a minor has capacity to make his or her own decisions. Under Florida Law, a minor lacks capacity until they reach 18 years of age. Additionally, the minor is generally only appointed an attorney in contested matters where more than one person applies to become the minor’s Guardian.

The process to become a Guardian Advocate in Florida is a hybrid between becoming the Guardian of an Adult and the Guardian of a Minor. Like the guardianship process of a minor, a Petition to Determine Incapacity and an examining committee is not needed. However, the individual is appointed an attorney. The Court Appointed Attorney’s role confirms the developmental disability and advises the Court whether the person(s) applying to be Guardian Advocate(s) should be appointed. 

Email or call the Law Office of David M. Goldman PLLC at 904-685-1200 to speak with our experienced Jacksonville Guardianship Lawyers and to find out more about the becoming a Florida Guardian.

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