The Procedure for Appointing a Legal Guardian

When a ward is incapable of taking care of his or her own interests, a court usually appoints a “guardian” to take care of that individual. A guardian may be appointed when a person experiences mental incapacity or a disability. A court may also appoint a guardian for a minor child in the event that the child’s natural guardian(s) are unable to serve as legal guardians of the child. But, what is the process that the court goes through when choosing a guardian? Who is qualified to be a guardian? Florida statutes and case law provide answers to many of the questions that come up when a court needs to select a guardian.

The basic qualifications for any guardian are (1) that he or she is 18 years or older and (2) that he or she is a resident of Florida. Fla. Stat. § 744.309. However, the resident requirement does have some flexibility built in and several exceptions do apply. See Fla. Stat. § 744.309(2).

Under Fla. Stat. §744.312, a court “may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not.” Florida courts have interpreted this statute to mean that while a person who is related by blood or marriage will receive preference in appointment of a guardian, this preference is not mandatory and the inquiry into choosing a guardian does not end there. See Morris v. Knight, 1 So. 3d 1236, 1239 (Fla. 4th DCA 2009). The court also has the discretion to give preference to a non-relative “who possesses particular experience or ability to serve as guardian.” See id. Similarly, a court is supposed to afford a preference to an individual who “[h]as educational, professional, or business experience relevant to the nature of the service sought to be provided.” Fla. Stat. § 744.312. These preferences, however, are only secondary concerns in naming a guardian.

The main concern when the court appoints a guardian is the preference of the ward. If it is known who the ward would prefer in selecting a guardian, then that will be the touchstone of the inquiry. Estate of Salley v. Comprehensive Personal Care Servs., Inc., 742 So. 2d 268, 271 (Fla. 3d DCA 1997). Courts have come to this conclusion based on the notion that it is the best interest of the ward that “trumps other considerations in the appointment of a guardian.” Morris v. Knight, 1 So. 3d at 1239. In making the determination as to what the wishes of the ward are, the court is required to consider the wishes expressed by the incapacitated person and/or any person designated as guardian in any will in which the ward is a beneficiary. Fla. Stat. § 744.312(3). In fact, the preference of the ward is so highly regarded that the Third District Court of Appeal held that where it was clear that a ward wanted her longtime friend to be her guardian, the friend, who was unwilling to serve as the plenary guardian, had the implied authority to nominate a different guardian of the property. See Estate of Salley, 742 So. 2d at 271.

If you or someone you know has an issue regarding guardianship or you would like to take appropriate action to have a court appoint a guardian, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin are ready, willing, and able to assist with your estate planning needs. Please feel free to contact us for an initial consultation.

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