Guardianship is a process designed to protect and exercise the legal rights of individuals whose functional limitations prevent them from being able to make their own decisions. It is the most restrictive type of decision-making assistance.
There are 3 types of guardianships in Florida:
Guardian Advocacy for individuals with developmental disabilities (Chapter 393.12, F.S.);
Guardian Advocacy for individuals with mental illness (Chapter 394.4598, F. S.);
Guardianship (Chapter 744, F.S.).
Here is a link to the Florida Statutes that address that question: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0744/Sections/0744.309.html
As noted above, Florida law addresses guardianship in three different locations: Chapter 744, Chapter 393 and Chapter 394. Within Chapter 744, there are 3 main types of guardians of adults in Florida: Family (someone who represents 2 or less people), Professional (someone who represents 3 or more people) and Public (someone who represents persons who are indigent or have not family willing to do so. Chapter 744 also addresses guardianship of the minor.
Chapter 393 addresses guardian advocacy for persons with developmental disabilities.
Chapter 394 addresses the process to become a guardian advocate for a person with mental illness, as well as the duties and responsibilities.
The duties and responsibilities for Chapter 393 guardian advocates and Chapter 744 guardians are clearly defined in Chapter 744.
A family guardian refers to any guardian who has at any time rendered services to less than three non-relatives or to two or more relatives as defined in s. 744.309(2).
If a guardian is needed and no family member is available or willing, there are two options. If the person is indigent, a Public Guardian may be appointed, if there is one in the judicial circuit where the person lives; otherwise a Professional Guardian may be appointed.
Florida requires a minor to have a court-appointed guardian if the minor has received an insurance settlement greater than $15,000.00 [FL Statute §744.387(2)]. Florida also requires the court to appoint a guardian, when the Court finds the person to be incapacitated. Additionally, a person can request the court to appoint a guardian and if the person has a developmental disability, may request a guardian advocate be appointed. However, Florida law is very clear that guardianship should be the last resort for providing assistance with decision making.
The first thing you should do is speak to the person about your concerns. Secondly, you should talk with the person’s family (or circle of support) to make certain they are aware of the situation. If you believe that the person is being abused, neglected (including self-neglect) or exploited, you should report it immediately to the Florida Abuse Hotline (1-800-962-2873).
In Florida, a judge is the only one with authority to appoint a guardian. In most judicial circuits guardianship matters are handled by the Probate Section of the Circuit Court.
Basically, the duty of the guardian to act ethically is paramount and the failure to fulfill his/her guardianship responsibilities could result in removal by the court and/or imposition of civil and criminal penalties. Click here for a link to the Florida Statutes section on guardianship duties and responsibilities: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0744/0744PARTVIContentsIndex.html.
Before this can be answered, you must identify the right with which that the person needs assistance. A general list (from least restrictive to more restrictive) includes: 1. making one’s own decisions with assistance from others; 2. various banking options (such as joint checking accounts, direct deposit/payments; etc.); 3. power of attorney and durable power of attorney; 4. representative payee for social security benefits; 5. advanced directive documents (such as living will, or health care surrogate designation); 6. medical proxy; 7. trusts (such as revocable, irrevocable and special needs).
There is an excellent manual on this that is available free of charge titled Lighting the Way to Guardianship and Other Decision Making Options. Here’s a link: http://www.fddc.org/publications/order-online
Before seeking guardianship, you should consider all of the less restrictive alternatives, as well as discuss your situation with an attorney. There is an excellent manual on this that is available free of charge titled Lighting the Way to Guardianship and Other Decision Making Options. Here’s a link: http://www.fddc.org/publications/order-online
Click here to get a list of the public guardians in Florida: http://elderaffairs.state.fl.us/doea/spgo_public.php
Click here to go to the website of the Florida Guardian Ad Litem Foundation: http://www.guardianadlitem.org/partners_main.asp
Guardians in Florida are appointed by the judiciary (court). Therefore, you should report any concerns you have about a guardian to the clerk of the probate court where the person under guardianship resides. The court has authority to investigate allegations as well as fine guardians and even remove them if the guardian is not acting ethically and in the best interest of the person under guardianship.
A guardian is required to submit an annual report to the court. The clerk’s office is responsible for reviewing these reports and investigating any concerns they may have as a result. Additionally the clerk’s office would investigate any allegation of impropriety that is reported to them. Following the clerk’s audit, the report is taken to the presiding guardianship judge for review and approval. If it appears that the guardian is not properly performing his or her duties, the court will take the necessary steps to protect the person under guardianship and/or his assets.
The Office of Public and Professional Guardians(OPPG), housed within the Department of Elderly Affairs, appoints local public guardian offices as directed by statute to provide guardianship services to persons who do not have adequate income or assets to afford a private guardian and there is no willing family or friend to serve. OPPG is also responsible for the registration of Professional Guardians. See their website for more details: http://elderaffairs.state.fl.us/doea/spgo.php
For questions regarding my CE broker account, and other continuing education concerns contact Statewide Public Guardianship Office (SPGO). See their website for more details: http://elderaffairs.state.fl.us/doea/spgo.php
Florida statutes allows a Guardian Advocate to be appointed as a less intrusive and costly alternative to full guardianship. However, it is only available for persons with a developmental disability (as explained in (Chapter 393, F.S) or a person with mental illness (as explained in Chapter 394, F.S.). Click on either citation above for access.
Contact the Office of Public and Professional Guardians (OPPG). Here’s a link to their website: http://elderaffairs.state.fl.us/doea/spgo.php.
There are several ways that a person can gain experience in being a guardian. We suggest you begin by joining an FSGA chapter so as to meet other guardians in your area and learn about their experiences. You will be able to network with other guardians in your area, as well as assess your community’s need for this type of service.
Secondly, you can take the 8 hr. (family) guardianship training, which is required of people who serve 2 or less persons. That will give you an overview of the requirements of Florida guardians and you can begin representing a few people to see if this is something in which you would like to become more involved. Also, by going this route first, you will not need to meet the continuing education requirements.
If you decide to expand the number of people you represent, or find that your services are in demand, you will need to take the 40 hour (professional) guardianship training, as well as register with the Statewide Public Guardianship Office, within the Florida Department of Elder Affairs. Once you have become a professional guardian, you should consider building a relationship with an experienced guardian in your local chapter. You could consider joining an existing professional guardianship practice in your area, or asking if they were interested in being your mentor, while you develop you own practice. Actually, the Statewide Public Guardianship Office is developing a mentoring program to facilitate this. Until that is ready, contact one of our Chapters or the Executive Office for assistance.
There are local guardianship organizations (some of which are associated with Florida State Guardianship Association), as well as the statewide Florida State Guardianship Association (FSGA) and the National Guardianship Association (NGA).
The FSGA is dedicated to the protection of the dignity and rights of incapacitated persons and to increasing the professionalism of guardianship through education, networking and legislative action.
Florida statutes allow the Court to require bonds of all guardians. Before exercising his or her authority as a guardian, every person appointed to be a guardian of the property n Florida shall file a bond with surety as prescribed by the Court and approved by the Clerk. This requirement may be waived by the Court, based on the value of the estate of the person under guardianship.
For professional guardians (person serving 3 or more individuals) a general bond not less than $50,000 must be purchased and the Court may require additional bonds based on the total amount of assets they are managing.
All guardians may be compensated for their services, but the amount must be determined and approved by the Court.
Florida statutes require family guardians (someone who serves 2 or less people) to complete 8 hours of training. For professional guardians (someone who serves 3 or more people), 40 hours of training is required. Additionally, professional guardians must complete 16 hours of continuing education unit every two years.
CE Broker is a commercial entity that manages continuing education for many professions, including professional guardians. If you are a professional guardian, you can create an account on CE Broker where your credits will be recorded and which will be recognized by the Statewide Public Guardianship Office.
All listings for the 40 hour course can be found on www.cebroker.com. Search for Professional Guardian, in person courses, initial 40 hour course. It is advisable to reach out to the listed instructor for additional information. For a list of FSGA members who teach this course, see our Education section.