Florida courts can appoint a surrogate decision-maker, also known as a guardian, to make financial and / or personal decisions for an adult with physical or mental disabilities or a minor, also known as a ward. In many cases, a guardian is appointed to a minor if both of their parents are incapacitated or die, and a guardian will be appointed to an adult if the court determines that their mental or physical ability to make decisions is impaired to the point that outside help is required. Florida law also allows an adult to petition for the appointment of a guardian if they believe themselves to be incapable of managing their own estate.
In order for a guardian to be relieved of their guardianship duties, the court must enter an order of discharge. There are several scenarios where this order can be granted, some voluntary and some involuntary.
- Restoring the Ward’s Rights: In order to restore some or all of the ward’s rights, the guardian needs to file a “suggestion of capacity” with the court that states that their ward can sufficiently exercise their rights. The ward will then be examined by a court-appointed physician, who will write up a report on their findings for the court. After the report is submitted, the court will then determine which rights to restore to the ward, and require the guardian to file a new guardianship plan if only some of the rights are restored.
- The Ward Moves Out of State: The court must provide the guardian with the proper authorization before a ward can move out of their state. If approved, the court may also allow guardianship to be transferred to someone in the new state or country once the ward’s file has been sent to their new country court.
- Guardian’s Removal or Resignation: The guardian can file a resignation and petition for discharge with the court if they wish to be relieved of their duties. In cases where the court finds that the guardian is no longer fit to serve in their position, like if they breach the fiduciary duty, they may be removed as guardian. All records and property of the ward must be turned over to the new guardian following their appointment.
- Death of the Ward: Until the court enters an order of discharge, the guardian is still responsible for fulfilling their duties, including preserving, protecting, investing, and insuring all of the ward’s assets after their death, at least until they have been properly distributed.
- Exhaustion of the Ward’s Assets: Once there are no more assets left to handle, the guardian can file a final account with the court that shows that they have completed their duties in a legal manner. After the court reviews the accounting, they may either enter an order to amend the guardianship, or terminate it altogether depending on the situation and the ward’s best interests.
- Ward Cannot Be Located: If, following a thorough search, the ward cannot be found, the court may allow the guardian to sell off the ward’s property and deposit any funds received with the court clerk. Following a final report, the guardian may be relieved of their duties.
While there are a variety of reasons why a guardian may seek to terminate their duties, in most cases there is a set of final steps that must be completed after the court enters an order of discharge.
- Finalized accounts for all financial activities
- Final guardian and attorney fees must be filed
- All guardianship funds and properties must be distributed
Whether or not these finals steps are required, guardians are required to keep a set of all records for a minimum of three years following their discharge from guardianship duties.
Terminating guardianship can be a complicated process that involves a significant amount of paperwork and hassle. It may be in your best interest to consult with or hire an attorney to assist you in this process. At Givens Givens Sparks, our attorneys understand how to navigate any hurdle or complication that may arise, and will work with you to ensure you receive the outcome that you require. Call us at (813) 336-3348, or fill out our online form to request a consultation.