The commencement of a Florida guardianship is typically used in two situations — either when a minor receives assets in excess of $15,000 or when a person may be incapacitated. If a guardianship is sought because someone may be incapacitated, then typically it involves two hearings. At the first hearing, the court determines whether the person is incapacitated; at the second hearing, the court appoints a guardian if the person was determined to be incapacitated. Often, these hearings are combined. The court has the option of appointing a limited or a plenary guardian.


A person is legally incapacitated if he or she is judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of such person. F.S. §744.102(12). The court will appoint an examining committee composed of three professionals, usually a psychiatrist, psychologist, and a third professional to interview the person and file a report with the court. See F.S. §744.331(3). The court will also appoint an attorney to represent the person alleged to be incapacitated. Partial or total incapacity must be established by clear and convincing evidence. F.S. §744.331.

Appointment of Guardian

Any adult resident of Florida can serve as a guardian. A non-resident of the state may serve if he or she is a close family member. See F.S. §744.309. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of pre-need guardian or at the hearing. Institutions, such as a public guardian may be appointed, but a bank trust department can only be appointed as guardian of the property and not guardian of the person.

Learn More

You will find answers to many of your questions about Florida Guardianship in our Florida Guardianship Quick Reference Guide.


Miami estate planning firm, Rarick & Beskin, P.A., has assisted families and business persons for over 20 years. Our firm has worked with over 400 similar law firms located in states outside of Florida to represent their clients in legal matters concerning probate, Florida estate planning, and asset protection. To schedule a meeting with a Miami estate planning attorney call (305) 556-5209 or (954) 861-1426, or e-mail We look forward to meeting you!


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