Notice - The Probate Division of the Seventeenth Judicial Circuit for
Broward County, Florida gratefully acknowledges Judge William J. Self, II of
the Probate Court of Bibb County, Macon, Georgia for allowing modification of
his work to reflect Florida law and local procedures. (Revised May 2002)
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HANDBOOK FOR GUARDIANS |
GENERAL INFORMATION AND INSTRUCTIONS
GUARDIANS OF INCAPACITATED ADULTS
GUARDIANS OF PROPERTY OF MINORS
GUARDIAN EDUCATION REQUIREMENTS
REPORTING REQUIREMENTS
INTRODUCTION FROM THE COURT
You have been appointed by the Probate Court as a GUARDIAN of or for
another person. The person over whom or over whose property you are
guardian is referred to in the law and in this handbook as the WARD. The
proceedings in the Court, as well as the property over which you serve as
guardian, are referred to as the GUARDIANSHIP.
This handbook has been designed as a helpful reference. It will briefly cover
the general information about guardianships with which you are expected by
the Court to become familiar. It will also provide certain information about the
reporting requirements placed upon you by Florida law, and it contains certain
sample forms for you to review when considering these reporting
requirements. It is prepared in what is hoped to be easily understood
language, with as few "legal terms" as possible.
This handbook is NOT intended to be a complete or exhaustive restatement
of the many laws governing guardianships in Florida, nor is it intended to take
the place of good legal advice from your attorney when appropriate. It is also
not intended to substitute for the required training course. It is hoped that the
information will give you the basic understanding necessary for you to comply
with the legal requirements and limitations placed upon you, thereby avoiding
problems or difficulties with the Court. However, the Court encourages you to
confer with your ATTORNEY whenever you have questions or concerns about
your obligations, RESPONSIBILITIES , duties, authority or liability, and,
whenever possible, you should consult your attorney BEFORE taking any
action about which you are concerned.
It is important for you to understand the relationship between you and the
Court and it's staff. The Judge of the Probate Court is an elected public
official - a "public servant," but one with specific responsibilities. The Judge is
NOT and must not become your legal advisor. The law requires the Judge to
remain impartial, and there is a specific rule against the Judge discussing any
aspect of any case which is or may become contested with any party to the
case unless all interested parties are present. Therefore, you should not
attempt to contact the Judge to "privately" discuss your case, and you should
not be offended if you are informed that the Judge cannot discuss the matter
with you outside a hearing.
The Judge's staff are employees of the Court who work for and at the direction
of the Judge. It is their responsibility to process the volume of paperwork filed
in the office and to attend to the administrative aspects of the operations of
this office. They are here to serve you, and they will want to do so to the best
of their abilities. However, they also may not serve as your legal advisors, and
you should not expect them to perform legal or clerical services for you. It is
NOT their responsibility or duty to complete any paperwork for you, and it is
not their responsibility to make a legal determination and advise you on which
proceeding may be the most appropriate or advisable for you or your
circumstances.
You should understand that it is the responsibility of the Judge and staff of the
Court to enforce all of the requirements of the guardianship laws and the rules
of the Court upon EVERY guardian. You have taken an oath as guardian to
properly administer the guardianship and to comply with those laws and rules
- in other words, to fulfill YOUR responsibilities. The Judge has also taken an
oath to enforce the laws and to fulfill HIS/HER responsibilities, and the Judge
will seek to do so. The Judge did not MAKE the laws but has the duty to
ENFORCE them. The Judge and staff all well understand that serving as a
guardian for another person is not always an easy task. It is often really a
BURDEN upon the guardian, and it is not the intent or desire of the Court to
make that burden any greater.
Finally, please understand that the Court monitors many guardianships, in
addition to the many other Probate Court proceedings. The Judge and staff
do try to maintain a certain familiarity with the Court files, and they often
become very familiar with some files. However, everyone is best served when
there is certainty about the subject of discussion. It will always be best for you
to clearly identify yourself, the ward and the file (by Case No.) in any
conversation or correspondence with the Court. It may become necessary for
the Judge or staff member to pull the particular file for review to properly and
fully discuss the file, and you might be asked to provide some information to
"refresh the memory" when referring to earlier conversations with or
correspondence from the Court.
The Court appreciates your willingness to serve in this capacity and looks
forward to working with you for the benefit of the ward. Do call upon the staff of
the Court if they may be of service to you.
Thank you.
GENERAL INFORMATION AND INSTRUCTIONS
Guardianship is a legal relationship between the guardian and ward, much
like that of an agent or attorney-in-fact, that is created by Order of a court with
proper jurisdiction. In Florida, the Probate Courts have exclusive jurisdiction
over the appointment of guardians for minors and incapacitated adults.
Guardianship may be created for the PERSON of the ward, for the
PROPERTY of the ward, or for BOTH. Guardianship of the person of a minor
child does differ from CUSTODY of a minor child, which is not awarded only
by the Probate Court. A Probate Court is without authority to grant
guardianship of the person of a minor child with a living parent to anyone other
than the parent(s) without the consent of or notice to each living parent. The
guardian of the person need not be the same person as the guardian of the
property, although one person may certainly serve as both. There may be two
or more guardians, who would be referred to as co-guardians.
When an Order has been issued appointing a guardian, Letters of
Guardianship are issued by the Court to the person appointed. The Letters
of Guardianship serve to evidence that the guardian has authority over the
person or property (or both) of the ward. The guardian is first required to take
and sign an OATH that the guardian will comply with all of the requirements of
Florida law applicable to guardians.
In addition, every guardian of the property of another is required to post a
surety BOND with the Court, in such amount as may be set by the Court, to
secure the faithful performance of the guardian's duties and responsibilities.
The bond is, in effect, an insurance policy against any misappropriation or
mismanagement of the ward's property by the guardian.
A guardian of the person or property of another owes a duty of undivided
loyalty to the ward and must act in the bestinterests of the ward and the
ward's property. Guardians should always avoid even the appearance of a
conflict of interest in management of the ward's property and/or in decisions
about the ward's person. Additionally, any expenditure which appears to or
does benefit another, especially the guardian, more than the ward will be
subject to scrutiny by the Court.
A guardian of the person of another has those rights and powers reasonably
necessary to provide adequately for the support, care, education and
well-being of the ward. A guardian of the person is much like the parent of a
child who has both the authority and the responsibility of making decisions for
the child. This may mean that a guardian must make a decision which is
considered to be in the ward's best interest even if the ward voices an
objection, much like a parent requiring a child to attend school or receive
medical treatment. It is also the guardian's duty to assist the ward in improving
and developing any talents, skills or abilities the ward may have and to help
the ward gain and maintain self-confidence and as much independence as
may be appropriate to each circumstance. It is also the guardian's
responsibility to preserve and protect, to the extent possible under the
circumstances, the dignity of the ward.
A guardian of the person is entitled to custody of the ward and may establish
the ward's residence, consistent with the terms of any restrictions or directions
from the Court. The guardian is required to make arrangements, from funds
available from the ward's estate or other sources, to support the ward in the
least restrictive environment, according to the needs and resources of the
ward. The guardian may also participate in legal proceedings in the name of
the ward and for the ward's benefit. A guardian must be reasonably
accessible to and maintain regular contact with the ward, should be friendly,
courteous and tactful toward the ward at all times, and must respect and
protect the individual rights and dignity of the ward. The Court's order may
limit or remove from the ward certain rights or may reserve to the ward certain
rights, and the authority of the guardian will be governed by the Court's order.
Guardians of the person are required to file with the Court written reports on
the ward's general condition, living circumstances, progress and development,
and needs. These reports are called PLANS and are covered more fully
under the section on "Reporting Requirements." It is also the guardian's
responsibility to keep the Court fully informed on the whereabouts of the
guardian and ward, and the guardian must report to the Court any
change in the address and telephone number of the guardian and his
ward.
A guardian of the property of another has the duty to exercise ordinary
diligence in dealing with the ward's property and may be held liable for any
loss resulting from a lack of such diligence. A guardian of the property has the
duty to collect and preserve the assets of the ward. Except as limited by law
or the Court's order, a guardian of the property has control and authority over
all property (real, personal and intangible) of the ward and succeeds to all
property and contract rights removed from and not reserved to the ward.
All funds and property of the ward must be maintained, preserved, expended
and used for the benefit of the ward and those who may be legally dependent
upon the ward. The ward's estate should be utilized to feed, clothe, house,
educate and care for the ward and his lawful dependents in the standard to
which the ward and his dependents are accustomed, to the extent of and as
may be limited by the ward's resources. Utilization of the ward's estate for his
dependents should be after taking into account all other income of or support
for the dependents. Utilization of the ward's estate for his own benefit should
take into account all income and support of the ward and the expected
duration of the guardianship. While preservation of the ward's estate for his
heirs at law should not be of primary concern for the guardian, preservation
and utilization of the estate over the expected duration of the guardianship is
important and should be given due consideration by the guardian. On the
other hand, the guardian should NOT waste the assets of the estate or
expend it exorbitantly or above the usual standard of the ward simply to avoid
preservation for the heirs or those who may be beneficiaries of a will of the
ward.
It is the duty and responsibility of the guardian of the property to properly
manage and invest the ward's estate, and all funds of the estate must be
properly invested so as to earn reasonable income for the ward.
Noncash assets of the ward must also be properly managed and protected
for the benefit of the ward. If an asset is reasonably capable of earning
income, it must be dedicated to that purpose unless there is a compelling
reason otherwise. Non-income-producing assets should be preserved and
protected or liquidated (after proper authority is granted), as may be
appropriate under the circumstances.
A guardian of the property does NOT have authority to sell, convey, transfer,
mortgage, pledge or give away property of the ward without an order from
the Court. The Court may, upon the application of the guardian and after
appropriate notice is given as required by law, grant the guardian such
authority if the proposed transaction is considered by the Court to be
appropriate and proper. Generally, the assets of the ward are to be
preserved for the ward's use and benefit, and sales of property of the ward
are usually permitted only when necessary to provide for the care and support
of the ward (and/or those dependent upon the ward) or when preservation of
the asset is burdensome to the guardianship. The Court may, as appropriate,
grant authority to the guardian to sell the asset at a public sale
(a legal auction) or at a private sale under a specific contract.
All property of the ward titled or registered in the name of the guardian must
be titled or registered in the fiduciary capacity of the guardian (i.e., as a
guardian) and not in the guardian's name alone. Typically, the title, account or
deed will be registered as "John Doe, as Guardian of the property of Richard
Roe," although any variation which clearly shows the fiduciary nature of the
registration for the benefit of the named ward may be accepted and approved
by the Court. Bank accounts should be especially clearly designated, so as to
avoid unintentional commingling of funds or attachment for debts of the
guardian, and the ward's Social Security number should be provided to the
Bank for the reporting of interest income and other matters to the Internal
Revenue Service. Tangible items and personal property of the ward should be
maintained and protected by the guardian and not be so commingled with
personalty of the guardian as to lose its identity as the ward's property. A
guardian has no authority, absent the Court's approval, to use property of the
ward in such a manner as to dissipate, depreciate, waste or consume it or
otherwise use it for the guardian's own benefit.
A guardian of the property of another has the responsibility of filing, on behalf
of the ward, all federal and state income tax returns which might be required
from the ward.
In situations or circumstances which pose an immediate danger to the ward
or to the ward's assets, an emergency guardian may be appointed by the
Court. Emergency guardians may do only those things which may be
reasonably necessary to protect the ward or his assets from the described
danger, and the powers and duties of the emergency guardian are generally
specified in the Court's order. Unless an earlier termination date is set in the
Court's order or unless the proceeding is converted to permanent
guardianship proceedings, the emergency guardianship terminates in 60
days from the date of the order.
GUARDIANS OF INCAPACITATED ADULTS
In Florida, the Probate Courts may grant guardianship of the person and/or
property of an adult resident of the state (or one located in this state) who,
because of physical or mental illness or disability, detention by a foreign
power, or other just cause, lacks sufficient understanding or capacity to make
significant responsible decisions concerning his person (or is incapable of
communicating those decisions) AND/OR is incapable of managing his
estate or property which is likely to be wasted or dissipated unless proper
management is provided.
The petition seeking guardianship of the person or property of an alleged
incapacitated adult is filed by an individual having knowledge of the pertinent
facts. The Court will appoint an attorney for the ward if the ward does not
employ counsel. An evaluation of the proposed ward is performed by an
examining committee, which must file a written report of the evaluation with
the Court. Unless the petition is earlier dismissed by the Court, a final hearing
is held and a decision made on the petition.
The Probate Division of the Circuit Court has the authority, if the petition is
granted, to restrict or revoke certain rights or powers of the ward, including:
the power to contract marriage; the power to make contracts; the power to
consent to medical treatment; the power to establish a residence or place of
abode; the power to bring or defend any action at law or equity, the power to
buy, sell or otherwise dispose of real, personal or trust property; and the
power to enter into any business or commercial transaction.
Guardianship may be granted for the PERSON and/or over the PROPERTY
of the incapacitated adult, and the guardian of the person need not be the
same person as the guardian of the property. The respective responsibilities
of the guardian of the person and the guardian of the property were more fully
explained under General Information and Instructions .
GUARDIANS OF PROPERTY OF MINORS
In Florida, the Probate Courts may grant guardianship of the property of
minors. No third person may be named as guardian of the property of a minor
with a living mother or father without the written consent of to the living parent(s).
A guardian of property of a minor has the same obligations with reference to
management of the minor's estate as does a guardian of an adult. Guardians
generally have authority to expend INCOME in the guardianship for the benefit
of the ward. However, if there is someone (a parent or parents) legally
obligated to support the minor, the minor's guardianship may be used for the
purpose of support and maintenance only after such obligation of support has
been fully satisfied and to the extent of the inability of those so responsible to
provide for all the necessities of the minor. In other words, a guardian may not
use even the INCOME from the child's guardianship until the parental
obligation of support has been satisfied.
Guardianship of the property of a minor terminates by law upon the minor's
attaining the age of majority (presently age 18 in Florida). As soon as
reasonably practicable after the child's 18th birthday, the guardian is required
to turn over to the ward all property of the minor then remaining in the hands of
or under the control of the guardian. The guardian must file a final return and a
Petition for Discharge, to which will be attached the receipt from the former
minor. NOTE: The guardian should reserve the funds to pay the costs of court
in connection with the final filings.
Termination of the minor guardianship at the age of majority is required by
law, even if the guardian believes the child is not sufficiently mature to properly
manage the property to which he/she is entitled. Parents and other guardians
are encouraged to use such guidance and influence as might be necessary or
appropriate to aid the former minor in the proper investment and management
of such property. If the former minor is incapacitated and considered by the
guardian to be incapable of managing his/her estate after attaining the age of
majority, the guardian may want to consider filing adult guardianship
proceedings immediately after the child's 18th birthday and seek an order
from the Court having jurisdiction over those proceedings to hold the
minor-guardianship funds until the adult case may be heard.
- * The only exceptions to the investigatory process are those guardian
who are exempt by Court order or are the spouse or child of the ward.
These individuals MUST complete the Mandatory Checklist indicating
they are exempt.
Guardians are required to submit to an initial as well as an annual background
investigations. Each application package, per administrative order must be submitted with a Mandatory Checklist for Guardianship Applications.
The Mandatory Checklist accounts for the following items:
(1) Application for Investigation
(2) Application for Appointment (Disclosure Statement for Nonprofit
Corporate Guardians)
(3) $50.00 Investigatory Fee
(4) Fingerprint Card
(5) $47.00 Fingerprint Card Processing Fee
(6) Professional Guardians Only - $5.00 Clerk's Processing Fee
All of the necessary forms are contained in the "Backgound Investigation
Package" which is available in the probate clerk's office, room 252 of the
Courthouse
PROSPECTIVE GUARDIANS
Prospective guardians must submit the Mandatory Checklist along with an
Application for Investigation, Application for Appointment, and the $50.00
Investigatory Fee directly to the Clerk's Office. Prospective Guardians may
submit their fingerprint card and $47.00 fingerprint card fee directly to FDLE
although for expediting the appointment process, all guardians are
encouraged to submit the cards and fees directly to the Clerk's Office.
The fees are the same regardless of where the card is submitted. Guardian's
submitting their fingerprint card and $47.00 fee directly to the Clerk must send
two separate checks, (1) $50.00 made payable to the Clerk of Courts and (2)
$39.00 made payable to FDLE.
APPOINTED GUARDIANS
Appointed guardians must submit the Mandatory Checklist along with an
Application for Investigation, Application for Appointment and the $50.00
investigatory fee every year with the filing of their annual accounting. If an
extension of time has been granted for the filing of the annual accounting only,
the above referenced documents must be filed at the time the annual plan is
due.
GUARDIAN EDUCATION REQUIREMENTS
In accordance with Florida Statute 744.3145(2) "each person appointed by
the court to be a guardian must receive a minimum of 8 hours of instruction
and training...". To satisfy this training requirement, each guardian must,
within 1 year of appointment, complete the appropriate training course. You
may contact Broward Community College at (954) 201-2204 for further
information.
Guardians are required to file certain periodic reports with the Court having
jurisdiction over the proceedings. These reports are intended to provide the
Court certain information for the Court to properly supervise the affairs of the
ward and to supervise and monitor the guardian's performance of the lawful
duties and responsibilities. Failure to comply with any of the reporting
requirements can subject the guardian to appear before the Court. The Court
may assess costs against the guardian, may fine the guardian, may remove
the guardian, or may take such other actions as may be appropriate to the
circumstances of the case.
Guardians of the person are required to file reports with the Court which
disclose the status, condition, needs and circumstances of the ward. The
reports, called "Annual Plans", inform the Court where the ward is located,
how the ward is doing generally, how the ward's needs are being met, and
whether there has been any change in the condition or status of the ward
which might warrant the Court's intervention or a change in the guardianship
order. The Initial Plan is due from the guardian within sixty days of the date
of appointment of the guardian. Thereafter, Plans are filed ANNUALLY.
Guardians of the property are required to file with the Court, within sixty
days from the date of appointment, an inventory of ALL assets in the estate
of the ward. The Inventory must sufficiently itemize the assets and set forth a
reasonable value thereof to fully disclose of record the property of the ward
over which the guardian has control or authority. Inventories are designed to
disclose to the Court and anyone interested in the guardianship the full value
of the guardianship, which is often not known or only estimated at the time the
proceedings are filed, and the guardian is given sixty days to make the
complete and more accurate determination. Inventories also allow the Court
to determine the sufficiency of the bond posted by the guardian.
Guardians of the property are also required ANNUALLY to file returns with
the Court.. The annual accountings render an ACCOUNTING to the Court of
the actions of the guardian by itemizing all receipts and expenditures in the
guardianship. The Court is required by law to audit the returns of guardians,
and guardians are required to maintain complete and accurate records of all
of their actions as guardians. Guardians are required to maintain the records
for a period of three years after the date of discharge. Upon the termination of
the guardianship or upon the appointment of a successor guardian, the first
guardian will be required to file a final return, which will evidence final
disposition of the remaining property as required by law.
Although not filed with the Probate Court, a guardian of the property has the
legal responsibility of filing all required tax returns for the ward. The Internal
Revenue Code contains provisions for the assessment of certain penalties
against the guardian PERSONALLY for failure to file returns under certain
circumstances. In addition, there are usually penalties and/or interest payable
for delinquent returns (including ad valorem and intangibles returns), and such
penalties or interest may be assessed by a court against the guardian
personally if same result from unexcused or inexcusable neglect of the
guardian.
Guardians are allowed to recover and reimburse themselves for certain
expenses incurred in connection with their services as guardians. Guardians
are also entitled to receive from the guardianship certain compensation for
the guardian's service.
Out-of-pocket expenses reasonably incurred by a guardian in the performance
of the guardian's duties are reimbursable to the guardian from the
guardianship. To be reimbursable, the expenses must be reasonable in
amount (i.e., not excessive) and must have been incurred by the guardian as
a consequence of performance of some duty the guardian owes to the ward
(i.e., related specifically to the guardian's duties and responsibilities to the
ward as guardian, as opposed to some other relationship). Reimbursable
expenses do NOT include expenses incurred by a guardian in carrying out
other duties or matters related to natural affection (e.g., a son who is also his
mother's guardian is not entitled to reimbursement of expenses incurred in a
familial visit or for presents given his mother; i.e., those things for which there
was no reimbursement before the guardianship do not become reimbursable
under guardianship, unless done specifically in connection with the
guardianship petition itself). Reimbursable expenses can include
transportation costs, lodging and meals during out-of-town travel (when
appropriate), and other costs, losses and expenses actually incurred by the
guardian.
The fee payable to nonprofessional guardians in Broward County is currently
$30.00 per hour. Experience Professional Guardians, that is a professional
guardian with 4 years experience and 10 active paying cases will receive
$42.38 per hour. Corporate professional guardians with 2 or more employees
may receive $53.03 per hour. Please note, each task submitted is
scrutinized and any billing deemed to be excessive in nature will be
reduced or even eliminated. Guardians who fail or refuse, without just
cause, to file returns with the Court within the time set by law forfeit the right to
fees and expenses for the period covered by the return. In addition, Guardians
who are removed by the Court for waste or gross mismanagement are not
entitled to receive fees.
Application for Appiontment/Disclosure Statement
* This handbook has been changed, with the permission of it's author, to
reflect Florida law.
* Council of Probate Court Judges of Georgia Administrative Office of
the Courts Suite 550, 244 Washington Street Atlanta, GA 30334-5900
©1998
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