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Public Guardianship Program

Overview

The Florida Department of Elder Affairs Office of Public and Professional Guardianship has designated The Legal Aid Society of Palm Beach County as a registered Public Guardian serving Palm Beach, Martin, Okeechobee, and St. Lucie Counties. A public guardian acts as guardian for incapacitated persons who lack a willing and qualified family member or friend to serve as their guardian and who do not have adequate income or assets for the compensation of a private guardian.

Services

What Is Guardianship

Guardianship is a legal process that begins when a concerned individual or entity (“Petitioner”) recognizes that a person may lack capacity and may need a guardian. Through an attorney, a petition for guardianship is filed with the court. In Florida, an attorney must represent the concerned person or entity throughout the guardianship proceedings. The court will also appoint a three-member examining committee to evaluate the person. A hearing will take place before a judge to determine whether or not a guardianship is needed. This process is governed by Florida law and is designed to protect the interests of incapacitated people.

Alternatives To Guardianship

There are several alternatives to guardianship.

A “guardian advocate” may be appointed for a developmentally disabled persons in certain cases.

Advance Directives can be used as an alternative to guardianship. An advanced directive is a pre-arranged legal document that grants authority to another to make decisions on behalf of a person in the event of his or her incapacity. If an individual prepared “advanced directives” prior to incapacity and these directives sufficiently address a person’s health care, legal, or financial matters, then a guardianship may not be necessary.

A Power of Attorney (POA) empowers someone to make financial or medical decisions, as well as decisions about services. POA legally authorizes another person (agent) to make decisions on behalf of another individual (principal).

A Representative Payee is a term used by Social Security Administration (SSA) to identify a person that is appointed to manage benefits paid to an individual. A Rep. Payee may be appointed by the individual, guardian or POA.

Medical Proxy. A person empowered to make medical decisions such as consenting or refusing treatment, when an individual is found to lack decision-making capacity.

Which Individuals Qualify For The Legal Aid Society Of Palm Beach County Public Guardianship Program

Anyone can refer an alleged incapacitated person for services with The Legal Aid Society Public Guardianship Program.  Typically, referrals are submitted by social workers, case workers and medical facility professionals where the alleged incapacitated person resides. Family members who are unable to act as a guardian may also apply. The referring party is named as the “Petitioner” in all legal documents filed with the court until/if the guardian is appointed by the court. 

Is There Any Cost To The Applicant Or The Ward

There is no cost to apply to the Legal Aid Society of Palm Beach County Public Guardianship Program. If the courts appoint Legal Aid Society of Palm Beach County as the legal public guardian of the ward, all court costs and filing fees are waived by Florida law. Additionally, there are no ongoing legal fees or guardian fees assessed against the ward.

Frequently Asked Guardianship Questions

For more information about Guardianship, please click the links below or visit the Florida Bar Guardianship website, floridabar.org.

What Is A Guardian?

A guardian is an individual or institution (such as a nonprofit corporation or bank trust department) appointed by the court to act on behalf of an incapacitated person — called a “ward” — or for the ward’s assets.

Who Is Incapacitated?

An incapacitated person means a person who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some essential health and safety requirements of the person.

How Is A Person Determined To Be Incapacitated?

Any adult may file a petition — the “Petition to determine incapacity” — with the court to determine another person’s alleged incapacity, setting forth the factual information upon which they base their belief that the person is incapacitated.

Once the Petition to determine incapacity is filed with the court, the court, within five (5) days, will appoint a committee — “the examining committee” — of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, a person with an advanced degree in gerontology, or any other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.

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.

The examination of the alleged incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.

If the majority of the examining committee members concludes that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, 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. Depending on the court’s determination, the court may appoint a guardian of the person only, a guardian of property only, or a guardian of the person and property.

Who May Serve As Guardian?

Any adult resident of Florida, related or unrelated to the potential ward, can serve as a guardian. Certain relatives of the ward who do not live in Florida also may serve as guardian. However, people who have been convicted of a felony or who are incapable of carrying out the duties of a guardian cannot be appointed. Individuals who are professional or public guardians can serve as guardian. Additionally, an institution such as a nonprofit corporation can be appointed guardian, but a bank trust department may act as guardian only of the property.

If the incapacitated person (the “declarant”) — prior to any determination of incapacity — named a preneed guardian by making a written declaration that named such person to serve as guardian in the event of the declarant’s incapacity, the court shall appoint that guardian, as long as he/she/it is qualified, and unless the court determines appointing such guardian is contrary to the best interests of the ward.

The court may not appoint a guardian in some circumstances in which a conflict of interest may occur.

What Does A Guardian Do?

A guardian who is given authority over property of the ward is required to inventory the property, invest it prudently, use it for the ward’s support and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.

The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental, and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care along with a physician’s report.

If the court finds the ward partially incapacitated, it will appoint a limited guardian to perform only those rights that the ward is incapable of exercising.

 

Is A Guardian Accountable?

Yes. A guardian must be represented by an attorney who will serve as “attorney of record.” Guardians are usually required to furnish a bond (financial institutions and public guardians are not required to file a bond) and may be required to complete a court-approved training program.

The clerk of the court reviews all annual reports of guardians of the person and property and presents them to the court for approval. Guardians who do not properly carry out their responsibilities may be removed by the court.

Is Guardianship Permanent?

The guardianship does not have to be permanent. If a ward recovers in whole or part from the condition that caused that person to be incapacitated, 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.

A guardian may be held accountable and removed as guardian if the guardian fails to carry out the expected duties or otherwise becomes ineligible to act as guardian. A guardian also may resign by providing notice to the court.

Is Guardianship The Only Means Of Helping An Incapacitated Person?

No. Florida law requires the use of the least restrictive alternative to protect people incapable of caring for themselves and managing their financial affairs whenever possible. If a person creates an advance health care directive, a durable power of attorney or trust while competent, he or she may not require a guardian in the event of incapacity.

What About Guardians For Minors?

Parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents’ parental rights are terminated. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. Under specific circumstances and upon petition of a parent, brother, sister, next of kin, or other person interested in the welfare of the minor, the court may appoint a guardian for a minor without the necessity of an adjudication of incapacity. In circumstances where the parents die or become incapacitated or if a child receives an inheritance, proceeds of a lawsuit, or insurance policy in which the gross settlement involving the minor’s claim equals or exceeds $50,000, the court shall appoint a guardian to represent the minor’s interest before approving the settlement of the minor’s claim – unless a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor.  Both parents or a surviving parent may make and file with the clerk of the court a written declaration naming a guardian of the minor’s person or property to serve if both parents die or become incapacitated. A guardian also may be designated in a will.

Our Referral Process

  1. A referral must be submitted through our website legalaidpbc.org/pgpreferral. If the program is in a “wait list” status, the applicant will be notified.
  2. A Legal Aid Society of Palm Beach County case manager will visit the alleged incapacitated person and assess their eligibility.
  3. If accepted for consideration into the program, the applicant/petitioner will be notified.
  4. The appropriate legal documents will be drafted and submitted to the court. If/when the court appoints Legal Aid Society of Palm Beach County as the guardian, the applicant/petitioner will be notified.

THIS PROCESS CAN TAKE UP TO SEVERAL MONTHS.

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Disclaimer

The information provided on this website is information only. It does not constitute legal advice, nor does it substitute for the advice of an expert representative or attorney who knows the particulars of your case. Any use you make of the information on this website is at your own risk. We have made every effort to provide reliable, up-to-date information, but we do not guarantee its accuracy.