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October 02

An Involuntary Guardianship proceeding occurs when another individual files a petition in the Probate court that alleges your loved one lacks the mental or physical capacity to manage his or her person and/or property in some or all areas. The process is complex and filing a petition does not automatically mean a person is incapacitated. Once a guardian is appointed, the individual loses some or all of the following rights:

  • To seek or retain employment
  • To apply for governmental benefits on their own behalf
  • To vote
  • To marry
  • To drive and have a driver’s license
  • To travel

Prior to filing a petition with the Probate court or if a Petition has been filed against you as an alleged incapacitated person, you may want to contact a lawyer such as Guardianship Litigation Attorney Thomas Upchurch at 386-320-6169 to discuss the matter.

There are only two situations in which an Involuntary Guardian is appointed:

1) Emergency Temporary Guardian; or

2) when the court determines that your loved one lacks capacity in some area of their life.

In some cases, an Emergency Temporary Guardian may need to be appointed if your loved one appears to be in imminent danger of their physical or mental health, their safety is in jeopardy or their property is in danger of being wasted, misappropriated or lost. For more information on Emergency Temporary Guardianship you may want to review our Emergency Temporary Guardianship page.

Types of Involuntary Guardianship in Florida:

1) full or

2) limited

Each individual’s situation is different. After the hearing, the court may determine that only a Limited Guardianship is required. A Limited Guardianship occurs when a petition is filed to determine incapacity of your loved one and the court determines based upon the finding of fact that the alleged incapacitated person (AIP) lacks the ability to handle their affairs to a limited degree. For information on Limited Guardianship you may want to review our Limited Guardianship page.

What is the Involuntary Guardianship Process?

If a loved one’s relative or close acquaintance has concerns that an individual lacks capacity to handle their person and/or financial affairs they may petition the court to determine capacity. Once a petition is filed, the court appoints an examining committee to evaluate the AIP by performing a physical examination, mental health examination, and a functional assessment.

  • Three experts will turn in their reports.
  • Other experts may be called upon by the petitioner or the AIP.
  • Medical documentation may be allowed pertaining to the AIP.
  • Other evidence that is admissible may be presented by all parties.
  • Your loved one is allowed to testify if they choose to give their testimony.

In most cases, a final hearing is set in a month from the date of the petition.

Guardian’s Duties and Responsibilities

Once a permanent guardian is appointed, the individual is required to provide the court with a report regarding the person and/or the property, whichever is applicable. It is the guardian’s responsibility to ensure that the ward’s rights are protected. While the ward may lose some or all of the rights as listed above, he or she retains the right to privacy, access to courts, counsel, communicate with others, be treated humanely and with respect, and remain as independent as possible.

The guardian has a right to exercise the following on behalf of the ward:

  • Ability to consent to both the ward’s medical and mental health treatment
  • Make the decision on where the ward will reside, whether it be the city or the type of residence
  • To apply for government benefits for the ward
  • Decide social aspects of  the ward’s life or decide his or her social environment
  • Manage ward’s property
  • Enter into a contract
  • To sue or defend against lawsuits

If you need assistance in Volusia County, Flagler County,Sumter County, Putnam County,Hillsborough County, Miami-Dade County, Broward County, or Palm Beach County contact Florida Probate Litigation Attorney Thomas Upchurch at (386) 320-6169 for a consultation. If your county is not listed, assistance may still be provided.


This blog only reflects my personal views in my individual capacity. It does not necessarily represent the views of my law firm, and is not sponsored or endorsed by them. The information contained in the blog is based solely on opinion, and is provided only for educational purposes and is not intended to provide specific legal advice. No representation is made about the accuracy of the information posted in the blog. Blogs may or may not be updated and entries may be out-of-date at the time you view them.