Understanding Guardianship in Orlando and the Legal Process
Orlando is home to families with diverse needs, and sometimes legal guardianship becomes necessary to protect a loved one who cannot make decisions independently. Whether you need to establish guardianship for an aging parent, an adult child with special needs, or a minor, the legal process can be complex. If you are involved in a guardianship case—either as someone seeking to become a guardian or as an individual contesting a petition—you need strong legal guidance to ensure that your rights and interests are protected.
I am Attorney Beryl Thompson-McClary, and I represent individuals involved in guardianship cases across Orange County, Florida. Whether you are seeking to establish a guardianship or challenging one, I can guide you through the legal process and ensure that Florida law is followed correctly. Call 1-888-640-2999 to schedule a consultation and discuss your case.
What Is Guardianship Under Florida Law?
Guardianship is a legal arrangement where a court appoints a responsible adult to make personal, financial, or medical decisions for another person (known as the ward) who is unable to do so independently. Florida law recognizes different types of guardianship depending on the ward’s needs and circumstances.
Under Florida Statutes Chapter 744, the courts establish guardianship when no less restrictive alternative is available. This ensures that a person’s rights are protected while allowing a guardian to make necessary decisions on their behalf.
Some common types of guardianship in Florida include:
- Guardianship for Minors: Appointed when parents are unable to care for a child due to incapacity, death, or other reasons.
- Adult Guardianship: Established for adults with disabilities or cognitive impairments that prevent them from making informed decisions.
- Emergency Temporary Guardianship: Granted when immediate action is needed to protect an individual.
- Plenary vs. Limited Guardianship: A plenary guardian has full authority over all aspects of the ward’s life, while a limited guardian handles only specific matters outlined by the court.
The Legal Process of Petitioning for Guardianship in Florida
If you believe guardianship is necessary, the process begins by filing a petition with the circuit court. The steps involved in petitioning for guardianship under Florida law include:
1. Filing a Petition for Determination of Incapacity
Before a guardian can be appointed, the court must determine whether the proposed ward is incapacitated. This requires filing a Petition to Determine Incapacity with the court. The petition must include facts showing why the individual cannot manage their personal or financial affairs.
2. Examination by a Three-Member Committee
Once the petition is filed, the court appoints a committee of three professionals—usually a doctor, a psychologist, and a layperson—to evaluate the individual’s mental and physical condition. The committee submits a report to the judge with their findings.
3. Court Hearing on Incapacity
After reviewing the committee’s report, the court holds a hearing to determine whether the individual is legally incapacitated. If the court finds that the person lacks the ability to make decisions, it will proceed with appointing a guardian.
4. Filing a Petition for Appointment of Guardian
If the individual is deemed incapacitated, a Petition for Appointment of Guardian must be filed. This document nominates a guardian and explains why they are suitable for the role.
5. Guardian Appointment and Court Supervision
If the court approves the petition, the guardian is appointed and must take an oath to act in the ward’s best interests. Florida law requires guardians to file reports with the court, including financial accountings and care plans.
The Rights of the Ward and Contesting a Guardianship
Guardianship significantly affects a person’s legal rights, so Florida law provides safeguards to protect individuals from unnecessary or excessive guardianship arrangements. If you believe a loved one does not need a guardian or that an appointed guardian is not acting in their best interests, you have legal options.
- Challenging a Petition for Guardianship: If you disagree with a petition filed against you or a family member, you can contest the case by providing evidence that the individual can manage their own affairs.
- Petitioning to Modify or Terminate Guardianship: If circumstances change, the court can modify or remove a guardian when it is no longer necessary.
- Guardian Misconduct and Removal: If a guardian is failing in their duties or abusing their authority, legal action can be taken to remove them and appoint a new guardian.
Florida Laws That Impact Guardianship Cases
Several sections of Florida Statutes Chapter 744 are particularly relevant to guardianship proceedings:
- Section 744.3201: Governs the process of filing a petition for incapacity.
- Section 744.331: Outlines the requirements for the examining committee.
- Section 744.344: Details the appointment process for a guardian.
- Section 744.361: Specifies the duties and powers of a guardian.
- Section 744.464: Provides the legal procedure for terminating or modifying guardianship.
Understanding these laws is essential in ensuring that the guardianship process is handled lawfully and fairly.
FAQs About Petitioning for Guardianship in Florida
How long does the guardianship process take in Florida?
The timeline varies depending on the complexity of the case. If there are no disputes, the process can take a few months. However, contested guardianships can take longer due to hearings and additional legal proceedings.
Can guardianship be avoided?
Yes. Alternatives like powers of attorney, trusts, and advance directives may provide the necessary protections without requiring a formal guardianship. Exploring these options before filing for guardianship is always recommended.
Who can challenge a guardianship in Florida?
Any interested party, including family members or close friends, can challenge a guardianship if they believe the ward does not require one or if the appointed guardian is acting improperly.
What responsibilities does a guardian have?
A guardian must manage the ward’s personal, financial, and medical affairs responsibly. This includes filing annual reports with the court and making decisions in the ward’s best interests.
Can a guardian be removed?
Yes. If a guardian fails to perform their duties or abuses their authority, the court can remove them and appoint a new guardian.
How much does it cost to file for guardianship in Florida?
Costs vary but typically include court fees, attorney fees, and fees for medical evaluations. A clear estimate can be provided during a legal consultation.
Contact Orlando Attorney Beryl Thompson-McClary at 1-888-640-2999 For A Consultation
Guardianship cases can be legally and emotionally challenging, whether you are seeking to establish, contest, or modify a guardianship. I represent clients throughout Orange County, Florida, ensuring their rights and interests are protected. If you need legal guidance on a guardianship matter, call me at 1-888-640-2999 to schedule a consultation and discuss your case.
