What Rights Can Be Removed Under A Guardianship?

Florida Statute 744.3215 (2) (3) clarifies the status of guardianship with respect of the rights that can be removed and the rights that can be delegated.  A plenary guardianship is one in which all rights have been removed and those that can have been delegated to the guardian.  In a limited guardianship, the ward retains one or more of the listed rights.

RIGHTS THAT MAY BE REMOVED FROM A PERSON BY AN ORDER DETERMINING INCAPACITY INCLUDE THE RIGHT:

  1. To Marry
  2. To Vote
  3. To personally apply for government benefits
  4. To have a driver’s license
  5. To travel
  6. To seek or retain employment

RIGHTS THAT MAY BE REMOVED FROM A PERSON BY AN ORDER DETERMINING INCAPACITY AND WHICH MAY BE DELEGATED TO THE GUARDIAN INCLUDE THE RIGHT:

  1. To contract
  2. To sue and defend lawsuits
  3. To apply for government benefits
  4. To manage property or to make any gift or disposition of property
  5. To determine his or her residence
  6. To consent to medical treatment and mental health treatment
  7. To make decisions about his social environment or other social aspects of his life.

What Are The Types Of Guardianship?

Limited Guardian:       FS 744.102

A guardian who has been appointed by the court the exercise the legal rights and powers specifically designated by court order after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person has voluntarily petitioned the court for appointment of a limited guardian.

Plenary Guardian:  FS 744.102

A person who has been appointed by the court to exercise all delegable and legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.

Emergency Temporary Guardian:  FS 744.3031

A court, prior to the appointment of a guardian, but after a petition for determination of incapacity has been filed, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person.  The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.

The authority of the emergency temporary guardian expires 60 days after the date of appointment or when a guardian is appointed, whichever occurs first.  The authority of the emergency temporary guardian may be extended for an additional 30 days upon showing that an emergency still exists.  FS 744.3031(3)

What Does a Guardian Do?

When appointed as guardian of the person,  the guardian may have the following responsibilities assigned to them as guardian.

  • To consent to and monitor medical care and treatment
  • To determine and monitor residence for appropriateness
  • Consent to and monitor non-medical services, such as job training, counseling services, etc.
  • Work to increase the functional capacity of the individual
  • To maximize the client’s independence in the least restrictive environment
  • Protect the confidentiality of the ward
  • Advocate for the client’s rights and needs
  • Make end-of-life decisions
  • Provide annual reports to the court reporting on overall conditions

A guardian of the property is responsible for both the real and personal property or any interest in it and anything that may be the subject of ownership of the ward.  A guardian of the property would be responsible for the following duties:

  • Secure liquid bank accounts
  • Protect and preserve assets
  • Marshall and secure assets the ward has ownership interest in
  • Apply for government benefits
  • Manage property or to make any gift or disposition of property
  • Receive income on behalf of the ward
  • Make appropriate disbursements
  • Obtain appraisals of tangible property
  • File annual accountings with the court detailing actions taken
  • Manage and/or sell real property

What Can a Health Care Surrogate Do?

A health care surrogate is someone designated by a principal in a written document to make health care decisions for the principal if the principal is incapable.  It must contain the principal’s signature acknowledged by the principal in the presence of two attesting adult witnesses. The surrogate cannot be a witness and ate least one witness shall not be the spouse or blood relative.

The surrogate has the authority to:

  1. Make all health care decisions for the individual
  2. Consult with health care professionals regarding the care and treatment in order to provide informed consent
  3. Provide written consent including executing a DNR
  4. Gain access to the appropriate medical records
  5. Authorize the release of medical information for the principal
  6. Apply for public benefits and have access to information regarding income and assets to the extent required to apply for benefits
  7. Admit, transfer or discharge the principal to or from any facility licensed under Florida Statues Chapter 400

The health care surrogate continues to make health care decisions upon appointment by the court of a guardian unless the court revokes or modifies the surrogate’s authority.