Florida Guardianship by Kathleen Bryan: Primary Sources

Statutes & Constitution

Florida Statutes, Ch. 744. Guardianship

Pt. V. Adjudication of Incapacity and Appointment of Guardians

• § 744.3201. Petition to Determine Incapacity -- Online Sunshine; Lexis; Westlaw
  • Any adult person may file a Petition to Determine Incapacity, which must contain:
    • The name, age and address of petitioner;
    • The name age, and address of the alleged incapacitated person (AIP);
    • The primary language spoken by AIP;
    • Factual information of why petitioner believes AIP to be incapacitated;
    • The name and address of AIP's attending physician;
    • The rights which AIP is incapable of exercising; and
    • The names, relationships and addresses of AIP's next of kin.
• § 744.3215. Rights of Persons Determined Incapacitated -- Online Sunshine; Lexis; Westlaw
  • Enumerates the rights retained by an incapacitated person;
  • Enumerates the rights which may be removed from an incapacitated person but not exercised by the guardian;
  • Enumerates the rights which may be removed from an incapacitated person and delegated to the guardian; and
  • Enumerates the rights which a guardian may only exercise with specific authority from the court.
• § 744.331. Procedures to Determine Incapacity -- Online Sunshine; Lexis; Westlaw
  • Specifies procedure for filing Notice of Petition to Determine Incapacity.
  • Discusses requirements for appointing an attorney for the alleged incapacitated person.
  • Discusses requirements for examining committee including the fact that a court shall dismiss the petition if a majority of the examining committee members conclude the person is not incapacitated.
  • Discusses requirements of the adjudicatory hearing on incapacity.
  • Discusses requirements of the Order Determining Incapacity.
  • Discusses fees of the examining committee and court-appointed attorney.
• § 744.334. Petition for Appointment of Guardian -- Online Sunshine; Lexis; Westlaw
  • Enumerates the requirements for the Petition for Appointment of Guardian
  • A professional guardian may not petition for their own appointment unless they are a relative of the person.
• § 744.3371. Notice of Petition for Appointment of Guardian -- Online Sunshine; Lexis; Westlaw
  • The Petition for Appointment of Guardian should be heard on the same date as the incapacity hearing. If such petition is heard on a later date than the hearing, reasonable notice must be served on the parties.
• § 744.345. Letters of Guardianship -- Online Sunshine; Lexis; Westlaw
  • Letters of Guardianship will be issued to guardian specifying whether: the guardianship is of the person, property or both; the guardianship is plenary or limited; and the guardian is authorized to act on any advance directive.
• § 744.347. Oath of Guardian -- Online Sunshine; Lexis; Westlaw
  • Every guardian must take an oath to faithfully perform guardian duties prior to exercising authority as guardian.
• § 744.351. Bond of Guardian -- Online Sunshine; Lexis; Westlaw
  • Every guardian of the property must file a bond with surety prior to exercising authority as guardian. The court may waive the bond upon compelling reasons.
• § 744.358. Liability of a Guardian -- Online Sunshine; Lexis; Westlaw
  • A guardian is not liable for the debts, contracts or torts of the ward solely due to status as guardian.
• § 744.464. Restoration to Capacity -- Online Sunshine; Lexis; Westlaw
  • Discusses procedures for filing a Suggestion of Capacity in order to restore some or all rights removed.

U.S. Constitution

Amendment XIV

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law (emphasis added); nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV.

Case Law

Florida Guardianship Case Law

• Martinez v. Guardianship of Smith, 159 So. 3d 394 (Fla. Dist. Ct. App. 2015) -- Lexis; Westlaw
  • Court reversed an order appointing plenary guardian where the ward designated his wife as preneed guardian and the wife was not found to be unqualified or that her appointment was contrary to ward's best interest. 
• Linde v. Linde, 199 So. 3d 1102 (Fla. Dist. Ct. App. 2016) -- Lexis; Westlaw
  • In considering a ward's motion to restore their rights, the trial court may preclude evidence that is not directly related to ward's current capacity. Fla. Stat. § 744.464.
• Smith v. Smith, 224 So. 3d 740 (Fla. 2017) -- Lexis; Westlaw
  • A marriage entered into where a party lacks mental capacity may later be ratified upon regaining capacity.
  • The ward or intended spouse may seek court approval for a marriage after marrying in order to ratify the marriage.
• L.Y. v. Dep't of Health & Rehab. Servs., 696 So. 2d 430 (Fla. Dist. Ct. App. 1997). -- Lexis; Westlaw
  • Any adult person may file a petition to determine that an individual is incapacitated. Fla. Stat. § 744.3201.
• Guardianship of Bockmuller v. Harris, 602 So. 2d 608 (Fla. Dist. Ct. App. 1992). -- Lexis; Westlaw
  • When the ward's right to contract is removed by an order determining incapacity, that ward has no power to contract with an attorney to represent them in any proceedings. Fla. Stat. § 744.3215.
• Guardianship of King, 862 So. 2d 869 (Fla. Dist. Ct. App. 2003). -- Lexis; Westlaw
  • In a court proceeding to take away a person's personal freedom by adjudicating them incapacitated, minimal due process requires proper written notice and a hearing where that person may present evidence on their behalf.  Fla. Stat. § 744.3215. U.S. Const. amend. XIV.
• Adelman v. Elfenbein, 174 So. 3d 516 (Fla. Dist. Ct. App. 2015). -- Lexis; Westlaw
  • Guardianship and incapacity statutes are to be strictly construed. Fla. Stat. § 744.331.
  • The court is required to either appoint a guardian or find there is an alternative to guardianship upon a finding of incapacity. Fla. Stat. § 744.331.
• Cook v. Cook, 260 So. 3d 281 (Fla. Dist. Ct. App. 2018). -- Lexis; Westlaw
  • Each member of the appointed examining committee must perform their own individual examination of the alleged incapacitated person which may include: meetings with that person and their family or friends, interviewing caregivers and nurses, reviewing medical records and inspection of living conditions. Fla. Stat. § 744.331.
• Rothman v. Rothman, 93 So. 3d 1052 (Fla. Dist. Ct. App. 2012). -- Lexis; Westlaw
  • Trial court must dismiss the guardianship petition where a majority of the examining committee members found the AIP was not incapacitated. Fla. Stat. § 744.331.
• Faulkner v. Faulkner, 65 So. 3d 1167 (Fla. Dist. Ct. App. 2011). -- Lexis; Westlaw
  • AIP is required to pay examining committee fees even where Petition to Determine Incapacity was dismissed but filed in good faith. Fla. Stat. § 744.331.
• Guardianship of Lewis v. Godwin, 323 So. 2d 14 (Fla. Dist. Ct. App. 1975) -- Lexis; Westlaw
  • The court does not have authority to appoint a guardian where no Petition for Appointment of Guardian has been filed. Fla. Stat. § 744.334.​
• Carter v. Guardianship of Bromberg, 291 So. 3d 208 (Fla. Dist. Ct. App. 2020). -- Lexis; Westlaw
  • The mother of the ward was entitled to reasonable notice of evidentiary hearing on the petition to appoint a guardian as the next of kin, even where the mother was disqualified as guardian. Fla. Stat. § 744.3371. U.S. Const. amend. XIV.
• Webster & Moorefield, P.A. v. City Nat'l Bank, 453 So. 2d 441 (Fla. Dist. Ct. App. 1984). -- Lexis; Westlaw
  • Guardianship becomes effective when Order Appointing Guardian is entered; failure to issue Letters of Guardianship does not impact the validity of that order. Fla. Stat. § 744.345.
• Fid. & Deposit Co. of Maryland v. Hogan, 135 So. 825 (Fla. 1931). -- Lexis; Westlaw
  • County judge has discretion to determine the type of bond a guardian should give. Fla. Stat. § 744.351.