A Guardianship is a legal arrangement under which a person (the guardian) has the legal right and duty to care for another (the ward) and his or her property. A guardian of the person makes decisions and takes action regarding the personal care of the ward. A guardian of the property manages the property and assets of the ward. A guardian must be represented by an attorney.
A guardianship is established when a person’s is unable to legally act on his/her own behalf. This may be due to minority, (he or she is not of age), or due to mental and/or physical incapacity. A competent adult may also petition the court to appoint a voluntary guardian for himself or herself.
Minority: A guardianship must be established for the property of a minor child when an amount over $50,000 is to be paid to the minor. The court may also appoint a guardian before approving a settlement for a claim over $15,000. This may occur through an inheritance or through a settlement of a legal action. Guardianship of the person of a minor child may need to be established if both natural parents are deceased, incapacitated or unavailable.
Incapacity: A guardianship for an alleged incapacitated person is initiated by filing a “Petition to Determine Capacity” and a “Petition to Appoint Guardian” with the Clerk’s Probate department. The proposed guardian must be represented by an attorney.
The alleged incapacitated person (“the person”) and next of kin will be served with a notice and a copy of the court order appointing an examining committee and setting a hearing. An attorney will be appointed to represent the person at the hearing. Each member of the examining committee submits his or her report to the court after examining the person. At the hearing, the court will make a determination regarding the capacity of the -person, and if necessary, appoint a guardian.
Voluntary: A person may voluntarily petition the court for appointment of a guardian for his or her property when, though mentally competent, he or she is incapable of the care, custody, and management of his estate by reason of age or physical infirmity. A certificate of a licensed physician is required, stating that he or she has examined the person and that the person is competent to understand the nature of the guardianship and his delegation of authority.
Frequently Asked Questions
A person 18 years of age or older who has an interest in the protection of the personal or property rights of the ward -may qualify to serve as a court appointed guardian. A completed Application for Appointment of Guardian form must be submitted by the proposed guardian at the time a guardianship case is opened. The Court will review the application to ensure the guardian will best serve the needs of the ward.
What are the responsibilities of a guardian?
- A guardian is appointed by the court to act in the best interest of the ward. The guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.
- A guardian of the property manages the property of the ward. A newly appointed guardian is required to file an Initial Inventory of the ward’s assets within 60 days of his appointment.
- Subsequently, an annual accounting of the assets will be required.
- A guardian of the person is required to file an Initial Plan for the care of the ward within 60 days of his appointment. Subsequently, an annual plan is required to provide information to the court about the health and physical well being of the ward.
How do I become a guardian?
The most important step is to first contact an attorney that handles guardianship cases. The Clerk cannot give legal advice or advise you.
Some resources for guardians are available below:
Is a guardian subject to a background check prior to appointment?
- Both professional and non-professional guardians must be fingerprinted for a background check before being appointed as a guardian.
- The Polk County Sheriff’s Office obtains fingerprints by appointment only. Please call to make an appointment using the form listed below.
- The Polk County Sheriff’s Office will submit electronic fingerprint records to the Florida Department of Law Enforcement to obtain a criminal record check.
- The guardian is responsible for payment of all fees.
- The results will be returned to the Clerk’s Office where the information is held in a secure area and not subject to public record disclosure.
- The guardian should allow 2 weeks after fingerprinting for the results to be filed.
- For more information, including fees to be paid, please see the Forms & Documents section at the bottom of the page.
What are the filing and audit fees associated with Guardianship Cases?
Filing and audit fees can be found in the Forms & Documents section at the bottom of the page.
Audit fees are set by Florida Statute and based on the value of the ward’s assets.
How Do I Report Suspected Fraud, Waste or Abuse in Guardianships?
The law assigns the responsibility for auditing the guardianship reports to the Clerk of the Circuit Court. The Court then reviews the Clerk’s audit report.
If you suspect fraud, waste or abuse of elderly, minor children and incapacitated individuals in a guardianship, please call our fraud hotline at (863) 534-7776. You can report incidents such as:
- Missing money or property
- Suspicious loans, funds transfers, or changes in bank accounts or lines of credit
- Suspicious purchase or sale of real estate or personal property
- Forced removal of a ward from their home
- Isolation of the ward from friends and family
Please call the department of Inspector General during business hours to speak to a professional auditor.
You can also report fraud here: Report guardianship fraud
Forms & Documents