Is Guardianship Required in Florida?

by Joe Stone

Florida law requires a guardianship in two situations: when the parents of a minor child die or become incapacitated such that they are unable to care for the child; and when the child acquires property that exceeds $15,000, such as through an inheritance or insurance settlement. In each instance, the court must appoint an adult as guardian for the child. The guardianship is supervised by the court and remains in effect until the child reaches age 18 or unless earlier terminated by the court.

Parent Death or Incapacity

Florida law permits any adult interested in the welfare of a child to petition the court for appointment as guardian, if the child’s parents die or are unable to care for the child. The guardian’s rights and duties include all legal rights necessary to care for the child and his property. Parents concerned with planning for an unfortunate situation where their child needs a guardian can nominate a "preneed guardian." The nomination is accomplished by filing a written declaration with the court identifying the parents’ preference for guardian should they die or become incapacitated. However, the court must still find that the nominated person is qualified to act as guardian and is not bound by the parents’ declaration.

Minor Property in Excess of $15,000

Florida law recognizes a mother and father as the natural guardians of their children. If a child is entitled to receive money from any source, such as an inheritance, the parents are entitled to receive and manage the money for their child so long as the amount is less than $15,000. For amounts over $15,000, the court must appoint a guardian to handle the money. The parents can be appointed guardian, as well as any sibling or other relative. A non-relative can be appointed if he is a Florida resident. The court also has the option of appointing a professional guardian or a corporate guardian, such as a bank. An adult with a felony record or other court record indicating a case involving abuse, abandonment or neglect of a child cannot be appointed guardian.

Guardianship Reports

The minor's guardian must comply with Florida guardianship reporting requirements. An initial report must be filed with the court within 60 days after the guardian is appointed and include an inventory of the minor's assets and, if applicable, an annual plan for care of the minor's day-to-day needs, educational development and medical care. An accounting of the minor's assets and an update of the annual plan must be filed by the guardian with the court every year during the guardianship.

Actions Requiring Court Approval

A guardian is required to ask the court’s permission before taking certain actions on behalf of the child. For instance, if the child is injured in an accident and the guardian believes that filing a personal injury lawsuit on behalf of the child is necessary, the guardian must first make a request to the court for authority to file the lawsuit. A guardian who manages a child’s bank account must always request the court’s permission before withdrawing money from the account. If the child’s assets are sufficient to purchase a family home, the guardian can request the court’s permission to do so; however, title to the home must be in the child’s name and the child must reside in the home.