Estate Planning Guide

Guardianship of a Minor or Incapacitated Adult in Florida

Guardianship gives one person the legal authority to make decisions for someone who can't fully make them alone — a minor child, or an adult who has lost capacity. It's also one of the most restrictive proceedings in Florida law, which is why courts require real proof before they'll order it.

What Guardianship Actually Is

Guardianship in Florida is a court proceeding under Chapter 744, Florida Statutes, in which a judge appoints a guardian to exercise the legal rights of someone who can't exercise them alone — called the ward. It comes in two flavors that are often confused: guardianship of a minor, and guardianship of an incapacitated adult. The people involved and the legal standards are different, but the underlying structure is the same. A guardian can be appointed over the person (residence, medical care, and daily needs), over the property (money and assets), or both, and every guardian answers to the court on an ongoing basis for as long as the guardianship lasts.

Guardianship of a Minor Child

Parents are a child's natural guardians from birth, jointly if both are living and have parental rights, or alone if one has died or had rights terminated. A minor typically doesn't need a court-appointed guardian just because they're a minor. The question usually comes up in one of a few specific situations: both parents have died or become incapacitated, a child receives an inheritance, a lawsuit settlement, or life insurance proceeds, or a relative other than a parent needs legal authority to make decisions for the child.

Money is where the bright line sits. Under Fla. Stat. § 744.301, a natural guardian can receive and manage up to $15,000 on a minor's behalf, from a settlement, inheritance, or insurance payout, without any court appointment or bond. Once the amount exceeds $15,000, a guardian of the property has to be formally appointed by the court, even if that guardian is the child's own parent. Courts also typically require a guardian of the property to be appointed before approving certain settlements, such as a personal injury claim on the minor's behalf.

Parents can plan ahead for this. Both parents, or a surviving parent, can file a written declaration naming who should serve as guardian of a minor's person or property if both parents die or become incapacitated, and a guardian can also be nominated in a will. Florida courts give substantial weight to that nomination, though a guardianship proceeding is still typically required to formally appoint the nominee and issue letters of guardianship. Naming a guardian for minor children is one of the most common reasons parents put a basic will in place in the first place.

Guardianship of an Incapacitated Adult

For an adult, guardianship starts with a Petition to Determine Incapacity, which any competent adult can file with the circuit court in the county where the alleged incapacitated person lives. The petition has to describe the specific reasons guardianship is needed and identify which areas of decision-making are at issue — medical care, finances, residence, or some combination.

From there, the process follows a defined sequence:

An examining committee is appointed. Within five days of the petition being filed, the court appoints a three-member examining committee, including at least one psychiatrist or physician, to evaluate the person. Each member typically conducts a physical exam, a mental health evaluation, and a functional assessment, then files an independent report with the court.

An attorney is appointed for the alleged incapacitated person. This attorney represents that person's interests throughout the case and is independent of whoever filed the petition. The alleged incapacitated person can substitute their own attorney if they prefer.

A hearing is held if the committee finds incapacity. If a majority of the committee concludes the person isn't incapacitated in any respect, the court dismisses the petition outright. If the committee finds some level of incapacity, the court holds a hearing where the standard of proof is clear and convincing evidence, and the person has the right to be present, present evidence, and cross-examine witnesses.

A guardian is appointed, if one is still needed. If the court finds incapacity, it appoints a guardian, unless a less restrictive alternative, like an existing power of attorney, would adequately address the problem. The court specifies exactly which rights the guardian holds.

A standard, uncontested case usually takes 60 to 90 days from filing to appointment. When there's imminent danger to the person or their property, an emergency temporary guardian can be appointed within 24 to 72 hours under Fla. Stat. § 744.3031, without waiting for the full process to run.

Plenary vs. Limited Guardianship

Not every guardianship removes every right. Florida law requires courts to use the least restrictive alternative that adequately protects the person, which produces two different levels of guardianship:

Plenary guardianship removes all legal rights and gives the guardian full decision-making authority. It's reserved for people the court finds are without capacity in essentially every area.

Limited guardianship gives the guardian authority only over the specific areas where the person actually lacks capacity, such as managing finances, while the person keeps every other legal right, including the right to vote, marry, and make their own medical decisions unless a court order says otherwise.

A guardian, whichever type is appointed, is a fiduciary with no authority beyond what the court order expressly grants. Ongoing duties typically include filing an initial guardianship plan within 60 days of appointment, filing a verified inventory of the ward's property (for a guardian of the property), filing annual reports and accountings, appearing before the court as required, and getting advance court approval before major actions like selling real property, making gifts, or moving the ward's residence. Guardians are usually required to post a bond and complete a court-approved training program, and a guardian who doesn't meet these obligations can be removed and held financially responsible for losses to the ward's estate.

Alternatives Worth Considering First

Guardianship is a last resort under Florida law, not a first option, and the court is required to consider less restrictive alternatives before appointing a guardian for an adult. The most effective way to avoid it is to have the right documents signed before a crisis happens:

A durable power of attorney under Chapter 709 lets a named agent handle financial and legal matters if the principal becomes incapacitated, without any court involvement.

A healthcare surrogate designation under Chapter 765 lets a named surrogate make medical decisions when the principal can't make them personally.

A revocable living trust with a successor trustee can keep assets managed seamlessly through incapacity, again without court oversight.

For an adult with a developmental disability diagnosed before age 18 — including intellectual disability, autism, cerebral palsy, Down syndrome, Prader-Willi syndrome, spina bifida, and Phelan-McDermid syndrome — Florida offers a separate and often better-fitting option called guardian advocacy under Chapter 393. It doesn't require a judicial finding of incapacity, it's generally faster and less expensive than full guardianship, and the court identifies only the specific areas where help is needed rather than removing rights across the board. A petition for guardian advocacy can be filed once the minor turns 17 and a half, so the authority can be in place by the time they turn 18, right when a parent's authority as natural guardian would otherwise end. Families of a child with a developmental disability who is approaching adulthood should have this conversation well before the birthday arrives, not after.

Is Guardianship Permanent?

Not necessarily. If a ward recovers some or all of the capacity that led to the guardianship, a petition to restore rights can be filed, and the court will have the ward re-examined before deciding how much authority, if any, to return. A guardian can also be removed by the court for failing to carry out their duties, and a guardian who no longer wishes to serve can resign by notifying the court, though a successor typically has to be appointed before the guardianship can end. None of this happens automatically — someone has to petition the court either way.

Common Questions

Frequently Asked Questions

What's the difference between guardianship of the person and guardianship of the property?

A guardian of the person makes decisions about the ward's residence, medical care, and daily needs. A guardian of the property manages the ward's money and assets, pays bills, and accounts to the court for every transaction. One person can hold both roles, or the court can appoint two different guardians to split them.

If I name a guardian for my kids in my will, does that avoid a court proceeding later?

It helps a great deal but doesn't eliminate the court's role entirely. Florida courts give substantial weight to a guardian nominated in a parent's will or a preneed declaration, and will generally appoint that person, but a guardianship proceeding still has to be opened to formally appoint them and issue letters of guardianship.

Does a parent automatically lose the ability to make decisions when a child with a disability turns 18?

Yes, unless something is done beforehand. At 18, a child is legally an adult even if a developmental disability means they still need help with decisions. For someone diagnosed before 18 with certain developmental disabilities, Florida offers guardian advocacy under Fla. Stat. Chapter 393 as a faster, less restrictive alternative to full guardianship, and a petition can be filed as early as six months before the 18th birthday.

How long does it take to become a guardian for an incapacitated adult in Florida?

A standard, uncontested case typically takes 60 to 90 days from filing the petition to appointment, once the examining committee's reports and the incapacity hearing are complete. An emergency temporary guardian can be appointed within 24 to 72 hours when there's imminent danger to the person or their property. Contested cases can take considerably longer.

Can a guardianship be avoided or undone later?

Both. Guardianship can often be avoided entirely with a durable power of attorney and a healthcare surrogate designation signed while a person still has capacity, since Florida law requires courts to use the least restrictive alternative available. And an existing guardianship isn't necessarily permanent, if a ward regains capacity, a petition to restore rights can be filed and the ward can be re-examined.

Put the Right Documents in Place Before You Need Them

Graziano Law Group focuses on the advance-planning side of this issue — durable powers of attorney, healthcare surrogate designations, and trusts that are often what keep a guardianship from ever becoming necessary, along with wills that nominate a guardian for your minor children. We do not handle contested guardianship or conservatorship proceedings; if a petition has already become necessary, we're glad to help point you toward attorneys who focus on that litigation. Schedule a consultation to talk through which documents make sense for your family.

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