May 21, 2025
By: Dana M. Fragakis, Esq.
In Florida, guardianship refers to the court-appointed legal responsibility given to someone who will make decisions on behalf of an incapacitated person. A guardian may have authority over the person’s financial matters, while another guardian may have authority over the person’s personal care and medical decisions. However, one person may be appointed to serve both roles.
Here’s what it might involve:
- Personal Care Decisions: A guardian of the person may be responsible for making decisions about where the person lives, who their doctors are, what kind of medical care they receive, and ensuring their safety and daily well-being.
- Financial Decisions: A guardian of the property is in charge of managing the person’s finances, paying their bills, handling their property, managing investments, and making sure their assets are properly preserved.
Guardianship is often necessary when someone is unable to make these decisions for themselves due to mental incapacity, disability, or a serious medical condition.
When Is Guardianship Needed?
- Children: By law, children are considered incapable of managing their own financial affairs or making adult decisions about their lives. This includes not only young children but also adult children with special needs who may need continued care and support into adulthood.
- Adults: Sometimes, adults lose the ability to care for themselves due to mental illness, cognitive decline (like Alzheimer’s disease or dementia), brain injury, or physical illness. If the person is no longer able to make decisions that protect their health or financial stability, a guardianship can be sought.
What Does the Legal Process Look Like?
The process of seeking guardianship is court-supervised, and it’s important to have the right guidance throughout. Here’s how it generally works:
- Filing a Petition: The first step is for an interested party (family member, close friend, or other concerned individual) to file a petition with the court. This petition asks the court to declare the individual incapacitated and appoint a guardian.
- Evaluating Capacity: The court will require evidence — often from medical professionals — to demonstrate that the person is unable to make decisions for themselves. This is usually a thorough, sometimes emotional, process.
- Court Hearing: After reviewing the petition and the evidence, the court will schedule a hearing. In some cases, hearings may be conducted ex parte, meaning the guardian is appointed before other interested parties are notified (if there is concern about the individual’s safety or the behavior of other family members).
- Disputes: Guardianship can sometimes lead to disputes between family members or friends about who should be appointed. This is why it’s important to plan ahead as much as possible, to avoid leaving these decisions to the court.
Who Can Serve as a Guardian?
While the court generally prefers to appoint a close family member or spouse to be a guardian, this is not always possible. The key requirement is that the appointed individual must be a competent adult who is trusted to handle the responsibilities of caring for the individual.
If no family member or trusted friend is available or willing, the court can appoint a professional guardian — though this can sometimes lead to challenges or even financial abuse if not properly managed.
That’s why it’s incredibly important to plan ahead, if possible, and specify who you want to serve as a guardian in your estate planning documents. By doing so, you ensure your loved ones are protected and in capable hands.
The Importance of Planning Ahead
Guardianship comes with immense responsibility. For the person appointed, it’s not just about making decisions — it’s about protecting the life, dignity, and future of someone you care deeply about.
The best way to avoid unnecessary court intervention and stress for your family is to have a clear estate plan in place that names your chosen guardian or conservator in the event of incapacity. This will help keep your family from navigating a difficult and emotionally charged process in court.
At Florida Wills & Trusts Law, we help families create these important documents to ensure that their loved ones are always cared for — no matter what the future holds.
Let Us Help You Protect Your Loved Ones
Whether you are planning for the future or dealing with a loved one’s incapacity now, we are here to help. We’ll guide you through the guardianship or conservatorship process with care and expertise to make sure that everything is done the right way.
Click here to schedule your complimentary 30-minute Legacy Planning Meeting with us!