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The Florida Guardianship Law, also known as Florida Statute 744, regulates guardianship procedures affecting individuals who are adjudicated incapacitated in a court of law. Guardianship may be "plenary" or "limited." Guardianship is a court procedure for which there is a charge to the property of the "ward," i.e. the person who needs an appointed guardian. Plenary guardianship is appropriate for a person who lacks the capacity to perform all of the tasks necessary to care for his or her person or property, and limited guardianship is appropriate for a person who has been found by the court to lack the capacity to do some, but not all of these tasks, or after the person has voluntarily petitioned for appointment of a limited guardian. The availability of different levels of guardianship makes it possible for those individuals who are partially incapacitated to continue to perform the activities that they are capable of performing, while providing them with assistance to perform the activities that they have lost the capability to perform.

A person may appoint his/her own "preneed guardian" by naming a particular person (in a signed and witnessed statement) to serve as guardian in the event of incapacity. The court affirms the appointment of the preneed guardian within 20 days of assuming the responsibility of being a guardian. However, if the person did not select his/her own guardian prior to incapacity, the court may appoint either a relative or a professional guardian (a person who is given monetary compensation for playing that role).

The court generally gives preference for becoming a guardian to relatives, or to those who have particular educational or professional attributes that can meet the particular needs of the ward. The court determines the functions for which the guardian will be responsible, which may or may not include health care decisions. If the ward had appointed a health care surrogate, prior to incapacity, the court will specify what authority, if any, the guardian is authorized to exercise over the surrogate. To protect a ward's legal right to competent representation by the appointed guardian, guardians must receive initial training, and subsequent continuing education.

Wards have the right to legal representation during the guardianship proceedings. Guardianship procedures are invasive, and they can severely restrict the ward's legal rights. The court may limit the ward's ability to marry, vote, personally apply for government benefits, have a driver's license, travel, or seek/retain employment. Guardianship procedures should therefore be used sparingly, to maximize the wards' ability to retain their civil liberties as long as possible. To avoid the need for guardianship, a competent adult may appoint a legal decisionmaker for financial matters in a power of attorney and/or in a durable power of attorney (a document that continues to be in effect even after incapacity). For medical decisions, adults can specify their wishes in a living will, and can appoint a health care surrogate to act on their behalf and to apply their living will.

For more information about guardianship and/or for information about free documents to designate a legal decisionmaker, you may contact Hana Osman, Ph.D., e-mail address: hosman@hsc.usf.edu, or by telephone: (813) 974-4867.

© 2003, Florida Coalition for Optimal Mental Health & Aging