Although most attorneys recommend hiring professional guardians, sometimes a friend or family member will seek to be appointed guardian of his or her loved one.  Becoming a guardian is no easy task, however, nor is it one that should be taken lightly.  Once a guardian is appointed, he or she must maintain constant compliance with Florida guardianship law (which is codified under Florida Statute 744), and must provide regular accounting of all guardianship activities for the Court’s review.  But, before all that, guardians must undergo background checks and pass extensive training and examination before a Court will consider them for appointment.  Below are some frequently asked questions about what it takes to become a guardian.

Who cannot be a guardian?

• No one under the age of 18
• No one who has been convicted of a felony
• No one who is incapacitated or otherwise unfit or unable to be a guardian
• No one who has been judicially determined to have committed abuse, abandonment or neglect of a child
• No one who has pled guilty or nolo contendere to any offense prohibited under Fla. Stat. 435.05 or to any similar statute of another jurisdiction
•  *No one who provides substantial professional services to a proposed ward or who is otherwise a creditor of the proposed ward, or who is an employee of such person or entity
•   No one who is determined by a Court to have a conflict of interest

* A creditor or professional service provider of a proposed ward may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward’s best interest

I live out of State, can I still be a Guardian for a loved one who is in Florida?

Yes, but only if you are legally related to the proposed ward in one of the following ways defined by Fla. Stat. 744.309(2):

1. Related by lineal consanguinity to the ward;
2. A legally adopted child or adoptive parent of the ward;
3. A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or
4. The spouse of a person otherwise qualified under this section.

Do I have to do anything before a Court will consider appointing me as guardian?

Yes.  The first step you must take towards getting appointed guardian is to find the right attorney to represent you, preferably one with ample experience in guardianship and/or Elder law.  Once that attorney decides that a guardianship is in fact the appropriate remedy for your loved one’s situation he or she will accompany his or her petition to determine incapacity with a petition for the Court to appoint you as guardian.  Once you are appointed, an attorney is still required to file petitions and pleadings throughout the duration of the guardianship.  An attorney is also necessary to provide counsel in complex situations that can arise and to maintain compliance with all relevant laws. 

All proposed guardians must submit an application to become guardian in each case.  That application, which accompanies the petition for appointment, must list the proposed guardian’s qualifications.  All proposed nonprofessional guardians must also submit at their own expense to a credit history report and background screening, and must additionally undergo a state and national criminal background check using fingerprinting.  The fingerprints, along with a required fee, are sent to the Department of Law Enforcement where they are stored after submission. 

Within four months of appointment a nonprofessional or “family” guardian must also undergo *8 hours of court approved training.  This training covers the legal duties and responsibilities of a guardian, the rights of the ward, the availability of local resources to aid the ward, and the preparation of habilitation plans and annual guardianship reports, including financial accounting for the ward’s property.  It should be noted that professional guardians are required to complete a 40 hour course before they can be considered for appointment, which is another reason why attorneys recommend their use.

* Guardians of the property for minors must only undergo 4 hours of training which covers the legal duties and responsibilities of the property, the preparation of the initial inventory and annual guardianship accountings for the ward’s property, and use of guardianship assets.

What if more than one person petitions to become guardian of the same ward?

Although it does not occur often, sometimes more than one person will petition to become the guardian of a proposed ward.  In that event the Court must make the determination of who to appoint based upon the qualifications of each individual who has petitioned.  Although the Court has discretion in making this determination, there are certain considerations that a Judge must take into account in order to comply with the law. 

For example, Fla. Stat. 744.312(2) states that the court shall give preference to the appointment of a person who:

1. Is related by blood or marriage to the ward;
2. Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
3. Has the capacity to manage the financial resources involved; or
4. Has the ability to meet the requirements of the law and the unique needs of the individual case.

Fla. Stat. 744.312(3) additionally provides that a Court shall also:

1. Consider the wishes expressed by an incapacitated person as to who shall be appointed guardian;
2. Consider the preference of a minor who is age 14 or over as to who should be appointed guardian;
3. Consider any person designated as guardian in any will in which the ward is a beneficiary.

Finally, Fla. Stat. 744.312(4) states that:

If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.

As stated, the first and most important step in this process is finding the right attorney for you.  Contact a Board Certified Elder Law Attorney in your area who specializes in these issues so that you can embark on this process knowing that the well-being of your loved ones is secure.