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Do I Need a Guardianship or a Conservatorship? What's the Difference?

n Florida, both guardianship and conservatorship are awarded the same rights, powers, and duties. The difference is if the person you are petitioning for is incapacitated or missing. If the person is incapacitated, you will file for guardianship. If the person is missing, you will have to prove a vested interest in the estate and file for conservatorship

Once you file a petition, the court typically sets a hearing within five days, so timing is crucial. After adjudication, the incapacitated person is termed a "ward," and a guardian is assigned by the court. If you are granted a conservatorship, the missing person is regarded as the "absentee," and the petitioner is appointed conservator. Adjudication is a legal term that means ''formal judgment''. If granted, the rights, powers, and duties are essentially the same in both cases. However, the most significant difference between these two is that a conservatorship is more about overseeing the estate and financial assets as the petitioner depends on the absentee. In contrast, guardianship is about an appointee making real-time decisions over medical, personal, and financial issues for someone unable to make those decisions for themselves.

Our legal team understands the need for empathy in these cases and has helped families petition the courts and navigate the process step-by-step throughout Florida. Time is critical when fighting for the best interest of your loved one. With an ever-growing retirement community, the need for guardianships is on the rise. Having an experienced attorney on your side makes a world of difference. Here are a few things you should know about guardianships. 

Guardianship

The Florida Courts define guardianship as a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities. Once the court finds the criteria have been met, and it is in the best interest of the ‘ward,’ a guardian is appointed. However, not all guardianship cases are the same. In some cases, the judge might issue a limited guardianship or even a temporary order. Guardianships in Florida can be voluntary or involuntary, and guardianship is only warranted when no lesser restrictive alternative is available and approved by the court. 

Abusing the powers of guardianship can lead to a felony offense. Being granted guardianship does NOT grant authority to sell, transfer, mortgage, or donate any of the ward's property without prior approval from the court. Florida Statutes outline rules, duties, and obligations of guardians, attorneys, and the courts to ensure all parties act in the best interests of the ward. If you are appointed as a guardian, it is important to remember that the court plays an essential role in determining a ward's best interests. Here are some of the requirements the court expects completed within the first few months of appointment.  

The first requirement of an appointed guardian is to complete a training course within four months of appointment. This includes an eight-hour course with forty hours of training and instruction.  Within sixty days of appointment, Guardians must submit to the court an Initial Guardianship Plan, an Annual Plan, and Initial Inventory. Once a year, the court requires an annual accounting. Guardians must keep detailed records, save expenditures, and account for every dime throughout the year. 

The Guardianship Process

  1. File a petition to determine another person's incapacity

  2. Conduct a hearing where the court determines if there is a less restrictive alternative to guardianship

  3. A decision is made by the court on whether to appoint guardianship

Conservatorship

To petition for conservatorship in Florida, the petitioner must meet a few requirements. The petitioner must have an interest in the property or estate of the absentee and is dependent on said absentee for his or her maintenance or support. If your case has satisfied the court's requirements and met the definition for the person to be 'absentee,' the court can enter an order appointing the petitioner as conservator. The process follows the same outline as guardianship, where you will petition the court, have a hearing, and, if satisfied, the court will assign a conservator. 

Experience Matters, Call Today for Assistance 

If you have a loved one that needs either guardianship or conservatorship, let the experienced legal team at Every & Stack guide you with your case. Time is crucial when difficult decisions have to be made quickly. Call our estate planning attorneys at 386-255-1925 for a free initial consultation. You may also contact us online to schedule a consultation at our Daytona Beach office.