Professional Guardianship

Guardianship is the process designed to protect and exercise the legal rights of individuals who lack the capacity to make their own decisions. David Bellotti is a Professional Guardian registered with Florida’s Statewide Public Guardianship Office.

Guardianship is the process designed to protect and exercise the legal rights of individuals whose functional limitations prevent them from being able to make their own decisions and have no plans in place to do so. Before guardianship is established, it must be determined that the alleged incapacitated person lacks capacity. Guardianship should be the last resort.

Depending on the determination of the court and what will best serve the needs of the ward, the court may appoint a guardian of the person only, a guardian of property only, or a guardian of the person and property.

Professional Guardians are required to have completed 40 hours of State mandated training and 16 hours of continuing education every two years. To be appointed by the court as a Guardian, the professional must have passed a State competency exam, criminal background and credit checks and obtain a $50,000 blanket bond.

The Guardianship Process

A Petition is Filed with the Circuit Court

Any competent adult may file with the court a petition to determine another person’s incapacity. Once the petition if filed, the court will then appoint an examining committee consisting of three members. The examining committee will conduct an evaluation and report back to the court. In addition, the court will appoint an attorney to represent the Allegedly Incapacitated Person (AIP).

A Hearing Is Held

The court will hold a hearing to review the reports of the examining committee. If the court finds the AIP to be incapacitated, the court must then determine if there is a less restrictive alternative to guardianship.

Appointment of a Guardian

If the court determines the AIP is incapacitated and there is no less restrictive alternative, the court will appoint a guardian and issue letters of guardianship. The court may appoint a Guardian of the Person that can manage medical, living arrangements and social interaction, a Guardian of Property that can manage the ward’s assets and estate, or both. While not ideal, the court may appoint separate Guardian of the Person and Property or a Plenary Guardian of both person and property.

Guardianship, Reporting, and Court Supervision

The Professional Guardian is free to make the necessary decisions for the realms appointed by the court following the statutes for Florida Law Chapter 744. The Guardian must submit an Initial Plan of Care and Initial Inventory within 60 days of appointment and annually thereafter along with an annual accounting. The court reviews these plans and can require changes or even a change of the Guardian.

Types of Guardianship

The two most common types of guardianship are limited and plenary. In a limited guardianship the guardian assumes only the delegable rights specifically given by a court order. The person under guardianship (called a ward of the court) keeps all other decision-making rights not specifically outlined by the court. In a plenary guardianship the rights enumerated in Florida law that can be delegated can be applied to the person, their estate, or both.

Responsibility for the following for the ward:

  • Determining and monitoring place of the ward’s residence
  • Consenting to and monitoring medical treatment
  • Consenting to and monitoring non-medical services such as education or counseling
  • Releasing confidential information
  • Making end-of-life decisions
  • Maximizing independence in least restrictive manner
  • Determining with whom and under what conditions a person may socialize

Guardianship of the estate or property may include anything that is the subject of ownership, whether tangible or intangible. The court may order the guardian to take control of and be responsible for the following:

  • Acting as representative payee
  • Determining and applying for benefits
  • Obtaining appraisals of property
  • Protecting property and assets from loss
  • Receiving income for the estate
  • Making appropriate disbursements (the guardian may need to obtain court approval prior to the disposition of those assets enumerated in Florida Statute 744.441)

Florida has specific laws governing guardianship proceedings and guardian activities, all of which are designed to protect the interests of the ward. A Florida guardian is accountable to the local court and must report annually on the status of the ward and account for all financial activity.

Title XLIII Chapter 744 of the Florida Statutes controls how guardianships are applied. The statutes can be read online.

Case/Care management — Geriatric care management is a profession dedicated to assisting elderly people and their families develop plans for long-term care and living arrangements. Care management also involves assessment of needs, coordination, and management of daily and long-term support services. Decision-making remains with the person.

Healthcare surrogacy — Healthcare surrogacy is when a person is appointed by a competent adult to make all healthcare decisions during any period of incapacity of the maker. The healthcare surrogate has the duty, when acting on behalf of the maker, to consult with healthcare providers and make the healthcare decisions that the individual would have made for her/himself, not those which the surrogate would have chosen. The designation of a healthcare surrogate may be revoked by its maker at any time.

Living trust — A living trust, also known as a revocable trust, is an alternative to a will for the distribution of one’s assets. During the owner’s lifetime, property can be transferred in and out of the trust by the owner. After the owner’s death, the trust cannot be revoked and the property owned by the trust is not subject to probate.

Durable power of attorney — A durable power of attorney is a special document provided by Florida law that allows a person to act on behalf of another even if the latter becomes incapacitated.

Living wills — A living will (not a living trust) is a properly witnessed written declaration directing the provision, withholding or withdrawal of life prolonging procedures in the event one should have a terminal condition. In Florida, the definition of “life prolonging procedures” has been expanded by the legislature to include the provision of food and water to terminally ill patients. Once the living will has been witnessed and signed, it is the responsibility of the maker to notify his or her physician of its existence. It is an even better idea to provide both the physician and the hospital with copies of the document. A living will may be revoked by its maker at any time.

Joint tenancy — Joint tenancy with right of survivorship is one of several ways for two or more people to hold an interest in the same property at the same time. Almost any kind of property can be held in joint tenancy, whether personal property or real property such as homes, buildings, land, and even bank accounts.

Community services — Community services may include services such as government programs designed for the elderly, home health and companion services, and local civic programs.