What is a Temporary Guardianship?
What is a Temporary Guardianship?
When it comes to the legal world, there are different forms of paperwork required depending on the situation. One of those situations is serving in a temporary guardianship role for someone who can no longer render their own consent – whether due to a medical issue, or simply being out of the country, out of town or simply not available to do so.
So, what is a temporary guardianship?
Much like the rest of the legal world, this form is primarily designed as a means of protecting the individual , their assets and their best interests throughout the duration in which they require some assistance – or until they’re able to make those choices for themselves once again (whether due to resolution of the medical issue that stripped them of their ability to consent or return from their out of town location).
The point of the temporary guardianship is to serve the best interests of the ward – the person under guardianship – at any cost. It’s the job of the temporary guardian to stand in the shoes of the ward and act on their behalf until such time where they’re able to express consent themselves. The temporary guardianship is often with regard to social or financial issues (making decisions on behalf of the ward, managing a financial situation, etc.), but also covers the powers of the full guardianship as well.
When applying for a temporary guardianship, the Florida Rules Governing Guardianship require that the applicant submit a verified statement detailing their best reasons for serving the role – and how they intend to exercise responsibility for the ward.
Temporary Guardianship Legal Requirements
The legal requirements for temporary guardianship in Florida are outlined in the Florida Statutes, specifically Chapters 393, 744, and 746. These sections broadly govern matters related to guardianship, including both the appointment of temporary guardianships and their termination. A temporary guardian in Florida can be appointed by a court in situations involving wards, minors, and incapacitated persons. The purpose of a temporary guardian is to supply relief from an emergency situation or to undertake business that cannot be delayed until the appointment of a permanent guardian. According to Florida law, the appointment of a temporary guardian does not require notice to the ward or interested persons that may be affected by the temporary guardianship. Instead, a temporary guardian avoids the notice requirement only in emergency situations and upon the issuance of an order from the court. When provided with evidence of an emergency and of the necessity for immediate relief, the court will consider it. If the court has jurisdiction, it can enter an ex parte order appointing a temporary guardian for a limited period. The appointment of a temporary guardian is subject to strict legal standards. To that end, Florida Statutes provide various requirements that must be met to obtain approval of a temporary guardianship. In the absence of these legal requirements, a temporary guardianship is subject to challenge in both the short and long term. Consider the following: To initiate a temporary guardianship, a person must file a Petition for Appointment of Temporary Guardian with the court before whom the Petition for Appointment of General Guardian is filed, or the Guardianship Costs Review Board if such board exists in the county where the Petition is pending. The proposed permanent guardian, physician, and ward (if applicable) must also join the Court in filing the Petition for Appointment of Temporary Guardian.
Process for Gaining Temporary Guardianship
The two main documents needed for temporary guardianship of a minor in Florida are the Petition for Appointment as Temporary Guardian and the Letter of Temporary Guardian. As a pre-requisite, you must be 18 years or older, and have a Florida residence, unless the standard residence requirement is waived (more on the standard residence requirement below). In addition, you must have a good reason for requesting temporary guardianship and the good reason must exist for the duration of the guardianship before the court will grant temporary guardianship. An Application for Appointment of Temporary Guardian consists of two synoptic forms – the aforementioned Petition for Appointment as Temporary Guardian and the Letter of Temporary Guardian. The petition asks for information about the guardian, the proposed ward (the person needing guardianship), the reasons to grant temporary guardianship, and other grounds for guardianship. It also sets forth the statutory elements necessary for appointment by the court. The petition must be filed in the county the proposed ward resides in, or a county where the proposed ward has property. The Letter of Temporary Guardian form is not a synoptic form, but it is a short form that includes the actions you are authorized to take for the minor child. It is important that the court order specifically state the actions you are authorized to take as a temporary guardian. The scope of authority can only be as limited or expanded as the written order of the court. The Order will not automatically grant power of attorney status. The proposed ward must have a home state and one must exist for at least 6 consecutive months. If there is no home state, then you must establish the minor has connections with Florida and for the last 6 months. If the proposed ward only temporarily resides in Florida, then you must file in a state where the proposed ward may have lived for at least 6 consecutive months. The following are some examples for grounds to seek temporary guardianship: In addition to the Petition for Appointment as Temporary Guardian, you must also file the following: After filing the Petition and the Court Orders Sir, the next step is to get the forms signed by the Judge. You can usually go to the Probate division of the courthouse to hand deliver the Petition for Appointment as Temporary Guardian form to Court Administration. They will usually process the Order and obtain the Judge’s signature without the need for a notation hearing. A temporary guardianship is usually limited to 30 days, but may be longer if requested. If you want the guardianship to extend for longer than 30 days, you must file for relief prior to the end of the time. If you fail to do so, the guardianship terminates in 30 days. Many times, the guardianship is for a period of time to give the guardian time to make plans for the minor child. However, if you seek to make decisions for the child, you must immediately notify the custodial parent of your intentions. Avoiding this communication can backfire when seeking the wisdom of the Judge. It is critical to stay proactive and act in the best interest of the child to avoid problems and bolsters chances for being appointed as the permanent guardian. A temporary guardianship is a fast way to obtain authority for a minor child in the State of Florida. Absent a strong necessity for the guardianship, appointing a permanent guardian is typically much more expensive and time consuming.
How to Complete the Temporary Guardianship Form
The Temporary Guardianship Form itself is relatively straightforward to complete once you have the above background information. That is, the form sets out the name of the proposed guardian or substitute guardian, the name of the ward or person to be protected, the date and place of birth of the ward, and the relationship of the proposed guardian to the ward. It also includes an affidavit, under oath, to the Court that:
• The ward owns real property located in Florida;
• The ward cannot live safely at home;
• No other person willing and able to act as guardian in the best interest of the ward is available to serve as guardian in the best interest of the ward;
• The proposed guardian is qualified to serve as the temporary guardian of the ward’s person; and
• The proposed guardian has notified the ward of the filing of the petition and has provided a copy of the petition and any notice obtained within the last 30 days showing that he or she has been notified of the hearing.
Remember, the completed temporary guardianship form must be filed in the Florida dependency or guardianship court handling the case.
Termination and Duration of Temporary Guardianship
The duration of a temporary guardianship is typically set to last for 90 days. In other words, the initial order in connection with the temporary guardianship will outline the length of time that the temporary order will be in effect. It is important to note that the order is only effective for the 90-day period unless there are further hearings, motions and orders issued to extend the temporary guardianship. Indeed , it is possible to extend the duration of the temporary order upon a showing of good cause. The temporary guardianship will terminate if and when: The temporary guardianship may be dissolved by Court order at any time. Notably, the order is not effective just because an order is entered by the Court. As such, all people should be aware of the guardianship order before acting to ensure that his or her actions do not unknowingly violate the order.
Responsibilities and Rights as a Temporary Guardian
Once the court appoints a temporary guardian, the guardian is authorized to control the personal and financial affairs of the ward; such as, determining the living arrangements of the ward and paying the ward’s financial obligations. The powers and responsibilities (also known as the "Letters of Temporary Guardianship") are limited to the time before the hearing on the Emergency Petition is held and the Court establishes a regular Guardianship (or not), or until the temporary guardian is removed for any reason or the temporary guardianship itself is terminated by the Court. The form which the person petitioning the court (the Petitioner) must fill out and submit has some information included on it. That information, such as the name of the person willing to serve, will be in the Probate Court file along with the copies of the Letters and the Oath given by the temporary guardian, but the form also requires some other steps that may delay the filing of the Emergency Petition a little bit. What additional steps?
As mentioned above, the Florida Probate Code does require the proposed temporary guardian to complete an Oath in which he/she agrees to act in the best interest of the ward and in accordance with the law and the terms set forth in the court order. Even if the proposed temporary guardian lives outside the state of Florida, the out of state guardian may act as the temporary guardian over or for the Florida ward. There is nothing in the law that prohibits a non-resident from being appointed as a temporary guardian. That said, the form requires the temporary guardian to qualify by being at least 18 years old, to be of sound mind and to not have been adjudicated incapacitated by a court.
The proposed guardian must be someone who is capable of handling the responsibilities of guardian and who will be willing and available to carry out the duties set by the court. The State of Florida requires the proposed guardian to sign a form that agrees to serve in this position and a lengthy Oath. The person submitting the Petition and Oath should be aware that the information set forth in the Oath is ultimately verified by the local Police Department and the Florida Department of Law Enforcement. The person who wants to be appointed as temporary guardian must authorize the FDLE and Police to perform a criminal history check.
Takeaway: The Florida Probate Code allows an individual to petition the Court for the appointment of a temporary guardian for "good cause shown." The Order Appointing the Temporary Guardian is accompanied by a form attachment that contains the rights and responsibilities for the temporary guardian to abide by. At this stage of the guardianship, it is wise for the Guardian to follow this Order closely and abide by what it states. Failure to do so may have unwanted consequences in the final guardianship. Florida Courts take these matters seriously and the Guardianship Code should be followed carefully.
Misconceptions and Mistakes Concerning Temporary Guardian
A. Failing to Use the Right Form
Florida has several different types of temporary guardianship forms. These include forms for health care surrogates, durable powers of attorney, and even a designations of pre-need guardian. The most common form for a temporary guardian is the Petition to Determine Incapacity and for Appointment of a Temporary Guardian for Removal of a Guardian. If you’re looking for a temporary guardian, yours would be the Petition to Extend the Temporary Guardianship. Look at the bottom of the first page and you’ll see the name of the form. Many times, inexperienced clerks will complete the wrong form and that leads to being delayed. Don’t think getting it filed now means you can fill out the wrong form and it will just be amended later. If you file the wrong form I will have to file a motion to strike and file the correct one. It is easier if you just do it right the first time.
B. Not Meeting the Burden of Proof
Many people are under the impression that in order to appoint a temporary guardian, you must be able to prove incapacity by the greater weight of the evidence. There is a separate burden of proof for incapacity, but not temporary guardianships. To be granted the power to enter an ex parte order creating a temporary guardianship you have to only show the judge that there is an emergency requiring a guardian to be appointed and that the appointment of the temporary guardian is in the best interest of the alleged incapacitated person.
C. Not Following the Court’s Orders
After you have a temporary guardian appointed you have a lot of work to do. You need to have a hearing right away and determine if the ward can ever get their property back and then have a proof of claim filed. If the ward has personal property nothing stops you from getting it and selling it on your own. Judges tend to try to be very good about entering the post appointing orders that allow you to sell it on your own but sometimes clerks don’t first check to see if the order granting the original petition was entered before sending the order out.
Why Solicit Assistance for Your Guardianship Issues
It’s critical to get professional advice when dealing with Florida’s temporary guardianship forms. The rules are complicated, and you can never be too careful when it comes to the well-being of your loved ones. Many Floridians don’t know how the process works, and it’s easy to make a mistake that ends up costing you money and time. There is a good chance that you may be able to handle your own temporary guardianship, but if it’s a complicated situation that involves substantial assets or child welfare, it can be an expensive and time-consuming project that will fall apart without the help of a quality attorney. Anyone who does not have the time or expertise may benefit from having a little help and guidance before and during the guardianship process. You can ask around and get recommendations from friends and family, but choosing the right attorney may seem like a daunting task. It does not have to be.
We are experienced in dealing with temporary guardianship forms, and we have a firm grasp on the law here in Florida . We won’t judge you or make you feel foolish for not knowing what you’re doing. In fact, most of our temporary guardianship clients don’t have a clue where to start. They call because they need help, and we are here to provide it. We have a "no judgment zone," and when we sit down with you, we will hear your side of things and do everything we can to help you. We also urge you to ask around a little in order to find a local attorney that you can trust. Maybe someone that your family members have worked with. A family law attorney or even a probate attorney may be able to help you with your case. Be sure to focus on finding someone that specializes in guardianships. "Jack of all trade" attorneys tend to not have the latest and greatest information about the field that you need, so look for someone who works in this area of the law every day. It may cost you a little bit more money but, in the end, you will appreciate the security that it brings.
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