A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person. A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to care for an incapacitated person and/or the person’s assets.

An incapacitated person, called the “ward” is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or is unable to manage at least some of his or her essential health and safety needs.

Any adult may file a petition with the court to determine another person’s incapacity, setting forth the facts which support their belief that the person is incapacitated. The court then appoints a committee of three members, usually two physicians and another person who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have specific knowledge related to the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court. The examination of the incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.

The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If the person is found to be incapacitated in any way, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that adequately address the person’s incapacity.

The guardianship does not have to be permanent. If a ward recovers in whole or part from the condition that caused the incapacitaty, a petition can be filed with the court to restore the ward’s rights. In such a case, the court will have the ward re-examined and can restore some or all of the ward’s rights.