The 5 Most Important Guardianship Terms and
Why Need to Know Them
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The process by which the court makes a determination about an individual's capacity to make important life decisions (about their health, financial status or living situation), and if found to be impaired, the court gives those decision-making rights to another person.
A written statement of facts voluntarily made by a person under an oath in the presence of a person authorized to do so by law, typically a Notary Public. The person applying to be a guardian must submit a written affidavit to the Court about their intention to become a guardian of the alleged incapacitated person.
Alleged Incapacitated Person
Abbreviated AIP, is the person who is the subject of a petition to determine capacity, and is
the person for whom a guardianship proceeding has been initiated. In the case of a guardianship application for a special needs parents, the AIP is your child with the developmental disability. The AIP is also referred to as the Ward.
All petitioners applying for guardianship must undergo a Level 2 background check that includes a credit and criminal investigation using fingerprints and biometric data.
That course of action that maximizes what is best for your child, includes consideration of
the least intrusive, most normalizing, and least restrictive course of action given you child’s needs.
A legal qualification, it is the ability to understand the nature of the effects of one’s acts. Click here for a great article that discusses the determination of capacity.
A local court that serves a specific judicial circuit. Each Florida circuit covers a specific geographic area (typically multiple counties) as listed below. There are 20 judicial circuits in Florida. There can be any number of judges in each circuit depending on the population and caseload of the area.
First Circuit - Escambia, Okaloosa, Santa Rosa and Walton
Second Circuit - Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla
Third Circuit - Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee and Taylor
Fourth Circuit - Clay, Duval and Nassau
Fifth Circuit - Citrus, Hernando, Lake, Marion and Sumter
Sixth Circuit - Pasco and Pinellas
Seventh Circuit - Flagler, Putnam, St. Johns and Volusia
Eighth Circuit - Alachua, Baker, Bradford, Gilchrist, Levy, and Union
Ninth Circuit - Orange and Osceola
Tenth Circuit - Hardee, Highlands, and Polk
Eleventh Circuit - Miami-Dade
Twelfth Circuit - DeSoto, Manatee, and Sarasota
Thirteenth Circuit - Hillsborough
Fourteenth Circuit - Bay, Calhoun, Gulf, Holmes, Jackson and Washington
Fifteenth Circuit - Palm Beach
Sixteenth Circuit - Monroe
Seventeenth Circuit - Broward
Eighteenth Circuit - Brevard and Seminole
Nineteenth Circuit - Indian River, Martin, Okeechobee and St. Lucie
Twentieth Circuit - Charlotte, Collier, Glades, Hendry and Lee
Clerk of Court
A court officer responsible for filing papers, issuing process, and keeping records of court proceedings as generally specified by rule or statute. Through the course of your guardian application, you will be interacting with the “Probate Clerk”, who works under the Clerk of Court in their own sub-unit. Click here to get a list of the contact information for the Probate Clerk’s for every Circuit and County in Florida.
A guardianship with two or more persons acting as guardian for your child, the ward. For example, if both parents wanted to participate as guardians for their child with a developmental disability, they would file as co-guardianship. There can be some downsides to creating a co-guardianship, mostly that, the co-guardians must agree about all decisions together, which can create conflict or indecision.
In the context of becoming a guardian advocate, a disorder that affects thought and actions and can range from mild to severe. The most common mild cognitive impairment is memory problems. Other areas affected can include language, attention, reasoning, judgment, reading and writing.
The mental ability to understand problems and make decisions.
A legal document, mandate, issued by the court and signed by a judge directing that something be done or that there is prohibition against some act. Examples in the context of guardianship include the letters of guardianship; spelling out directions for the care of your child and his or her estate, and authorization or denial of a request for action like removing your child from the county where they reside. In the case of Letters, not only must the guardian abide by the letters, but other people must abide by your authority to act as guardian.
Special needs parents can get guardianship for their children using an expedited process called a “guardian advocate” proceeding, if your child had a developmental disability as it is defined in the Florida Statutes. According to the statute, a person with a developmental disability must have an Intellectual Disability (IQ less than 70), Cerebral Palsy, Autism, Spina Bifida, Down Syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome that manifested before the age of 18. This disability must constitute a substantial handicap that can reasonably be expected to continue indefinitely.
An individual or an institution, that is appointed by the Probate Court to care for an incapacitated person, referred to as a 'ward', or for the ward's assets. By court order, certain rights are to make decisions, like where to live, healthcare decisions, how to manage their finances, are removed from the ward and given to the guardian who is supervised by the Court, and must make decisions on behalf of the ward that comply with the Court’s orders.
A guardian appointed by the court who is engaging in their Court-proscribed duties.
A expedited process created under Florida Law that enables family members, caregivers, or friends of individuals with a developmental disability to obtain guardianship (the legal authority to act on their behalf if the person lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for his or her person or property). This is accomplished without having to declare the person with a developmental disability as being incapacitated. For more information about what a guardian advocate is, click here.
A person who goes through the Guardian Advocacy process and is appointed by the Probate Court to be the guardian of an individual with developmental disabilities. A guardian advocate may have be a Guardian of the Person, Guardian of the Property or both.
Guardian Training Class
In the case of special needs parents getting guardianship through the guardian advocate program, once letters are issues by the Court, the guardian has 60 days to complete a 4-hour guardian advocate training class. Every circuit has their own specifically approved classes. See this document to see where you can take the class in your circuit.
Guardian of the Property
A guardian who is appointed to manage the money and property for a ward who the court has found cannot manage their money and property alone.
Guardian of the Person
A guardian who is appointed to make all necessary decisions about the ward’s everyday life, including from where to person will live to what kind of medical treatment they will receive.
A legal status determined in a court whereby an individual is judged to lack sufficient
ability to make specific personal or financial decisions for himself or herself, such as where to live, what medical treatment to get, or entering into financial transactions.
A person who has been judicially determined to have incapacity, that is, they lack the capacity to manage at least some of their property or to meet at least some of the essential health and safety requirements of the person.
Indigent Status (Civil)
If you can’t afford to pay for filing fees or the attorney for the Ward, you can ask the court if you can file your case without paying court fees and have a free attorney appointed to the Ward. You must meet income and assets standards found here, and must file an Application for Civil Indigent Status with the Clerk of the Court.
Initial Guardianship Plan
A report, filed by the guardian of the person, including a Guardian Advocate, describing the care the ward will receive in accordance with the recommendation of the Court; must be filed with the court within 60 days after the Letters of Guardianship have been issued.
Initial Guardianship Report
Consists of an initial guardianship plan or verified inventory, or both, depending on rights delegated.
A disability that is characterized by significant limitations in intellectual functioning and adaptive behavior. This covers many daily social and practical skills. In the context of the expedited guardianship filing under Guardian Advocacy, intellectual disabilities must originate before the age of 18.
The granting of guardianship to another after a determination of incapacity followed by the
transfer of rights by order of the Court.
An individual or other body authorized under applicable law to consent to specified
actions or decisions on behalf of an individual who lacks capacity to give such consent. A
legally authorized representative could include, for example, a guardian or Guardian Advocate, but also may include someone with power of attorney over another person, or the parent of a minor child.
Letters of Guardianship
A legal document issued by the court designating a person to act as guardian on behalf of
another person. These letters will specify the type of guardianship as well as the powers
and duties of the guardian.
A type of guardianship granted where court finds that ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property; and if the individual does not have pre-planned, written instructions for all aspects of his or her life. See, by contrast, Plenary Guardianship.
Rights granted to a guardian of the property, who much take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits and income.
In the State of Florida, a minor is a person under 18 years of age.
Notary (Notary Public)
A public official whose main powers include administering oaths and attesting to signatures, both important and effective ways to minimize fraud in legal documents. When completing an application for guardianship, some of the filings must be signed on front of a notary public under oath.
A swearing to tell the truth, the whole truth and nothing but the truth, which would subject the oath-taker to a prosecution for the crime of perjury if he/she knowingly lies in a statement either orally in a trial or deposition or in writing. Many of the documents to be submitted to the court in the guardianship process, the petitioner (person seeking guardianship) must sign under oath.
A formal, written request presented to a court or other official body. In the case of a special needs parent seeking guardianship, it’s the process through which you initiate the Guardian Advocate proceeding, it’s also how you would ask the court for anything requiring the Court’s approval or permission, for example, like purchasing a home with the Ward’s assets. Petitions get filed with the Probate Clerk.
A guardian (or Guardian Advocate) who has been appointed by the court to exercise all delegable legal rights and powers of a ward after the court makes a finding of incapacity or in the case of the Guardian Advocate, once a basis for granting guardian advocacy is made based on a developmental disability. Wards in plenary guardianships are, by definition, unable to care for themselves and, therefore, have these rights removed by the Court. See, by contrast Limited Guardianship.
In the case of guardianship, the formal notice or writ used by a court to exercise jurisdiction over a person or property.
The Probate Court is a branch of the Circuit Court that handles proceedings for establishment of wills, settlement of decedent's estates, supervision of guardianships for minors and incapacitated persons, and filing of mental health cases.
An inventory of the Ward’s assets, as prepared by the guardian, who attests to the Court the accuracy of the inventory under penalty of perjury.
May be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily petitions for the appointment.
The ward is the person for whom the guardianship petition is filed. In the case of a special needs parents, your child with a disability is the ward. In guardianship, the ward has some or all of his or her rights removed and allocated to the guardian by Court order. Synonyms include: Conservatee, disabled person, protected person, and incapacitated person.