Guardianship

Guardianship of an Adult or Minor Child

Sometimes, life circumstances may require you to take care of a loved one who can’t make their own decisions. This could be an aging parent, a grandparent, a child, or a loved one or other family member with health challenges. In Florida, you may need to become their legal guardian through the courts. Guardianship is a legal process that allows you to take care of someone who cannot make their own decisions. The person who needs assistance is called the ward, and the guardian is the person who acts on their behalf. There are two types of matters a guardian can be appointed for, guardian over the property and/or guardian of the person. Florida law generally requires a guardian to have an attorney.

Regalis Law can help you understand and navigate the guardianship process. We can help you get appointed by the court as a legal guardian, even in emergency situations. We can also help you explore other options, such as Power of Attorney, Healthcare Surrogate, or other documents, that may be less restrictive or costly, depending on if the person still has any capacity left to sign legal documents.

In cases of someone born with a development disability, a Guardian Advocacy may be available and less restrictive than a full guardianship, and Regalis Law can help you explore whether seeking appointment as a Guardian Advocate may be a better fit for your circumstances. Guardianship is a serious responsibility, and we are here to assist you with compassion and professionalism.

Regalis Law can help you with the guardianship process including:

• Get appointed by the court as a legal guardian, even in urgent situations

• Choose the type of guardianship that suits your needs, such as voluntary, involuntary, or alternative

• Decide the scope of your authority, such as making decisions about the ward’s health, property, or finances

• Follow the legal requirements and formalities for a valid and enforceable guardianship, including annual reports, accounting, inventory, or an initial plan

• Handle any issues that may arise, such as selling property, avoiding foreclosure, or applying for benefits

Guardianship Litigation

Removal of Current Guardian

Removing a currently acting guardian may be necessary if the Guardian is abusing their position or mismanaging the assets of the Ward. Florida law allows a Petition for Removal of the Guardian to be filed under certain circumstances. Usually, the appointed judge will determine if there is a valid basis to remove the current guardian. Regalis Law can represent you in advocating in Court for removal of a guardian. Section 744.474 of the Florida Statutes includes several reasons for removal.

744.474 Reasons for removal of guardian.—A guardian may be removed for any of the following reasons, and the removal shall be in addition to any other penalties prescribed by law:

(1) Fraud in obtaining her or his appointment.

(2) Failure to discharge her or his duties.

(3) Abuse of her or his powers.

(4) An incapacity or illness, including substance abuse, which renders the guardian incapable of discharging her or his duties.

(5) Failure to comply with any order of the court.

(6) The wasting, embezzlement, or other mismanagement of the ward’s property.

(7) Conviction of a felony.

(8) Development of a conflict of interest between the ward and the guardian.

(9) A material failure to comply with the guardianship report by the guardian.

(10) A failure to comply with the rules for timely filing the initial and annual guardianship reports.

(11) A failure to fulfill the guardianship education requirements.

(12) A material change in the ward’s financial circumstances such that the guardian is no longer qualified to manage the finances of the ward, or the previous degree of management is no longer required.

(13) Upon a showing that removal of the current guardian is in the best interest of the ward. 

Retroactive Approval of Assets

In situations where a guardian or conservator is ordered to pay back funds or transfer property, a Retroactive Petition for Approval may be necessary to obtain court approval for these actions. This may be typically necessary when the guardian was not aware of or did not comply with holding or using the ward’s fund’s pursuant to a court order. This may occur when the ward’s property is comingled or not placed in a restricted depository when otherwise required.

The purpose of this type of petition is obtain court approval of the guardian’s actions. The Court at times may issue an order to show cause requiring the guardian to return the property or funds, or face consequences such as contempt. We can assist with explaining to the court the reasoning behind the guardian’s actions to request approval and avoid consequences.

We can assist with filing a Retroactive Petition for Approval and help you explain and provide to the court:

1. The acquisition of the new asset(s)

2. The legal basis for seeking approval (e.g., court order, statute, or agreement)

3. A plan for managing and distributing the asset(s)

4. Any necessary documentation, such as wills, trusts, or other relevant legal documents

The court will review the petition and ensure that it complies with applicable laws and regulations before potentially granting approval. If approved, the guardian or conservator can then manage and distribute the asset(s) according to the approved plan.

Alternatives to Guardianship for Minor Children

Guardianship may be necessary in some cases, but there may be other options that suit your needs better. These options can include:

• Power of Attorney for a Minor: lets you choose someone to act on behalf of your minor child for a limited time or purpose

• Healthcare Surrogate for a Minor: lets you choose someone to make healthcare decisions for your minor child if you are unavailable

• Pre-need Guardian Designation for a Minor: lets you nominate who will be your child’s guardian in case you become incapacitated

• Temporary Custody by a Family Member: lets you give temporary custody of your minor child to a relative or close friend

Settlements for Minors

Florida Law requires Court approval or supervision of the property of a minor child who receives money through a settlement in certain circumstances, whether a car crash, wrongful death action, or other injury or legal claims. The Court may also require the funds to be placed under a guardianship or require the appointment of a guardian ad litem to review the settlement process and ensure the minor child’s rights are protected and the settlement is in the best interest of the child. A guardianship is required when the amount of the net settlement to the minor child/ward exceeds $15,000.

Regalis Law can help you determine whether Court approval is required for a minor settlement, whether a guardian ad litem is required to be appointed, or whether a formal guardianship is required. If guardianship is required, we can assist you in filing the proper petition and application for guardianship and throughout the process.

Regalis Law, P.A. is here to help you understand your choices and make informed decisions.

Florida statutes provide: 744.387 Settlement of claims.—

(1) When a settlement of any claim by or against the guardian, whether arising as a result of personal injury or otherwise, and whether arising before or after appointment of a guardian, is proposed, but before an action to enforce it is begun, on petition by the guardian of the property stating the facts of the claim, question, or dispute and the proposed settlement, and on any evidence that is introduced, the court may enter an order authorizing the settlement if satisfied that the settlement will be for the best interest of the ward.

-The 2023 Florida Statutes - 744.387 Settlement of Claims

Contact Regalis Law, P.A. today to assist with your Guardianship needs:

(321) 448-0408 | consult@regalislaw.com