At some point, you may face a situation where a loved one—whether a child, an aging parent, or an adult with disabilities—needs someone to make safe, sound decisions for them. When that happens, guardianship may be necessary to protect their well-being and legal interests.
Attorney Adriane Isenberg, a seasoned Florida guardianship attorney with over twenty five years of experience, can explain the purpose of guardianship, when it becomes necessary, and help you navigate the process under Florida law.
What Is Guardianship?
Guardianship is a legal relationship in which a court appoints a person, known as a guardian, to make decisions on behalf of another individual, referred to as the ward. Guardianship can be granted by the court as a temporary or permanent measure for minors, adults with disabilities, or in emergency situations. In all cases, the goal is to ensure that the ward’s rights, health, and safety are protected when they are unable to act for themselves.
A guardian can be granted responsibility over some or all of the following:
- Personal matters, such as healthcare or living arrangements
- Financial matters, including managing income, bills, or property
- Or both, in what is called plenary guardianship
Voluntary Guardianship
Voluntary guardianship occurs when a mentally competent adult recognizes their limitations and requests that the court appoint someone to assist in managing their affairs. This type of guardianship is most common among elderly individuals who may be experiencing the early stages of cognitive decline or who want assistance with managing finances, medical care, or daily tasks.
Key features of voluntary guardianship:
- The adult must be mentally competent at the time of the request.
- It is typically used when someone wants to plan for their care or financial needs.
- The guardian’s authority is limited to what the ward requests and what the court approves.
- The individual can terminate the guardianship if they change their mind, provided they remain competent.
Voluntary guardianship empowers individuals to maintain autonomy while receiving structured support from someone they trust.
Involuntary Guardianship
An involuntary guardianship is initiated when a person is incapacitated and unable to make informed decisions—and they either do not consent to a guardian or are unable to do so.
Involuntary guardianship is often necessary when someone is suffering from:
- Dementia or Alzheimer’s
- Severe mental illness
- Intellectual or developmental disabilities
- Traumatic brain injuries
- Substance abuse disorders that lead to incapacity
Key features of involuntary guardianship:
- The court must declare the individual legally incapacitated.
- A medical and psychological examining committee evaluates the person’s condition and submits reports.
- A judge conducts a formal hearing before appointing a guardian.
- The court determines the scope of the guardian’s authority, which may be personal, financial, or both.
Involuntary guardianship is a protective legal measure designed to prevent self-harm, exploitation, or financial ruin when someone can no longer protect themselves.
When Is Guardianship Necessary?
Guardianship may be required in several situations:
- Minors who have lost their parents or whose parents are unable to care for them
- Adults with developmental or intellectual disabilities who need support with decision-making
- Elderly individuals suffering from dementia, Alzheimer’s, or age-related cognitive decline
- Incapacitated individuals due to injury, illness, or medical conditions
- Temporary conditions, such as hospitalization or mental health crises, where a person cannot act in their best interest
Signs That Someone May Need a Guardian
It is not always obvious when guardianship is necessary. Many families struggle with the decision, especially when their loved one’s condition fluctuates.
There are clear signs that may indicate it is time to consider legal action:
- Unpaid bills and missed financial obligations
- Memory lapses, confusion, or disorientation
- Inability to manage medications or attend medical appointments
- Signs of self-neglect, such as poor hygiene or unsafe living conditions
- Vulnerability to scams, fraud, or exploitation
- Frequent hospital visits or medical crises
- Decline in judgment, including impulsive or dangerous behavior
Recognizing these red flags early can help prevent serious consequences, especially when assets, health, or safety are at risk.
The Legal Process for Establishing Guardianship in Florida
Florida law provides a clear but detailed process for appointing a guardian. While the procedure may vary slightly depending on the case, the main steps are as follows:
- Filing a Petition: A concerned party, usually a family member or close friend, files a petition in the probate court requesting guardianship. In most cases, they also file a petition to determine incapacity.
- Appointment of an Examining Committee: The court assigns a three-person committee—typically a physician, psychologist, and social worker—to evaluate the person’s physical and mental capacity. Their reports are submitted to the court.
- Court Hearing: A judge reviews the evidence and expert reports. If the individual is deemed incapacitated and the guardian is considered suitable, the court will issue a guardianship order.
- Letters of Guardianship: These legal documents officially authorize the guardian to act on behalf of the ward in designated areas.
- Court Oversight: Florida guardianship law requires ongoing supervision. Guardians must file annual reports, accounting documents, and updates on the ward’s condition to ensure continued protection.
The Role and Responsibilities of a Guardian in Florida
Being a guardian is a serious and structured responsibility under Florida law. Guardians are fiduciaries, which means they must act in the best interests of the ward with honesty, care, and transparency.
Responsibilities may include:
- Making healthcare decisions (e.g., approving surgeries or treatment)
- Deciding residency or living arrangements
- Managing the ward’s finances, income, or trust assets
- Protecting the ward from abuse, neglect, or exploitation
- Filing annual accountings and guardianship plans with the court
- Advocating for the ward’s quality of life, safety, and dignity
A guardian’s authority is limited to what the court allows, and they can be removed if they act improperly. That is why working with an experienced guardianship lawyer is so important when seeking or serving in this role.
How Courts Decide Who Becomes a Guardian
When multiple individuals express interest in becoming a guardian, or when there is no obvious candidate, the court considers several factors before making a decision:
- Relationship to the ward (preference is often given to close family members)
- Suitability and capability to handle the ward’s needs
- Financial responsibility
- Criminal background checks
- Whether the proposed guardian has conflicts of interest
- Wishes of the ward, if they are capable of expressing them or have named someone in prior legal documents (such as a pre-need guardian declaration)
The court’s main concern is always the best interest of the ward, ensuring that the appointed guardian will be able to care for them responsibly and respectfully.
Steps to Prepare for a Guardianship Petition
If you believe someone close to you needs a guardian, there are several things you can do to prepare before filing:
- Document behavioral or cognitive changes in a journal
- Collect medical records that indicate incapacity
- Consult with physicians, social workers, or case managers who can provide insight or testimony
- Speak with other family members to coordinate support and minimize conflict
- Work with a Florida guardianship attorney to ensure all forms, petitions, and court requirements are met properly
Proper preparation not only increases your chance of a successful petition—but it also reduces emotional stress during what is often a deeply personal process.
Get Help from a Trusted Gainesville Guardianship Attorney
Whether you are caring for a loved one with a disability, helping an aging parent, or facing an emergency involving temporary incapacity, guardianship may be necessary to provide legal protection and peace of mind. With decades of experience assisting Florida families, The Law Office of Adriane M. Isenberg, P.A., provides compassionate and professional legal guidance in all guardianship matters. As a trusted Florida family law attorney and guardianship attorney, Attorney Isenberg can guide you through the process from beginning to end.
To schedule a confidential consultation or learn more about guardianship in Florida, contact our law office at (352) 331-4922 or complete our online form today. We proudly represent clients in Gainesville and across North Central Florida.