Section 744.312(1) of the Florida Statutes provides that “the court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not”. Preference in appointment, however, must be given to a person who is related by blood or marriage to the ward. F.S. 744.312(2)(1). The court is also required to consider the wishes expressed by the incapacitated as to who shall be appointed, the educational, professional, or business experience relevant to the services to be provided, whether a person has the capacity to manage the financial assets involved, and whether the person meets the legal qualifications for appointment.
Generally, the guardian will be a resident of Florida; however, a nonresident may serve if the person is related to the ward through blood or marriage. F.S. 744.309(2). The guardian must be 18 years of age or older. Any person who has been convicted of a felony may not be appointed pursuant to Fla. Stat. § 744.309(2).
Petition for Appointment
A Petition for Appointment of Guardian must be verified by the petitioner and must contain: the name, age and post office address of the alleged incapacitated person, a statement regarding the nature of his or her incapacity, the extent of guardianship desired, the nature and value of any property subject to the guardianship, the names and addresses of the next of kind of the alleged incapacitated person, and the reasons why the petitioner should be appointed as the guardian.
The Petition for Appointment must be served on the alleged incapacitated person’s relatives within a reasonable time before the hearing, and the petition must be read to the alleged incapacitated person if it is served with a Petition to Determine Incapacity.
A hearing will take place after the Petition for Appointment has been filed with the Court and served on all interested parties. The hearing is usually uncontested, and, in such case, the court will review the petition to determine whether the prospective guardian is qualified to serve. If the Court determines that the prospective guardian is qualified to serve, the Court will enter an Order appointing the guardian. The guardian must thereafter take an oath to faithfully perform his or her duties, file. After filing the oath and posting any required bond, letters of guardianship will be issued to the guardian. The letters of guardianship will state whether the guardianship is limited or plenary. If the guardian has limited powers, the letters must state the specific powers and duties of the guardian, and to what extent the guardian is authorized to act on behalf of the ward.
