While appointing a guardian for a minor child, an adult child with special needs or an aging loved one can serve a number of invaluable purposes, there are various reasons why the need for a guardian may come to an end. There are also circumstances in which someone may find it necessary to seek to have a guardian removed in order to protect the ward’s best interests. Fortunately, Florida’s guardianship statute addresses both of these scenarios, and there are ways to terminate guardianship if and when necessary.
Terminating Guardianship in Florida: Resignation of the Guardian
As a guardian, the process of terminating guardianship in Florida is referred to as “resignation.” In order to resign as a guardian, it is necessary to show that either (i) the existing guardianship is no longer necessary or the least-restrictive means for meeting the ward’s needs, or (ii) a suitable successor guardian is available to assume your responsibilities.
Just as the appointment of a guardian is a formal judicial process, so is a guardian’s resignation. Resigning requires both notice to the court and notice to the surety on the guardian’s bond. Florida’s guardianship statute (Sections 744.467 and 744.521) also provides that a guardian who is seeking to resign must:
- File a “true and correct final report of his or her guardianship;”
- Provide proof of the termination of the ward’s incapacity or the inability to locate the ward (if applicable);
- Deliver all of the ward’s property, all records concerning the ward’s property, and all money due to the ward to the successor guardian (if applicable); and,
- Deliver copies of the records of the ward’s medical and personal care to the successor guardian (if applicable).
Additionally, Section 744.467 requires that:
“Before entering the order, the court shall be satisfied that the interest of the ward will not be placed in jeopardy by the resignation. The acceptance of the resignation shall not exonerate the guardian or the guardian’s surety from any liability previously incurred.”
If seeking to resign due to the ward’s relocation, a guardian has certain additional responsibilities under Section 744.524. It must also be confirmed that a new guardian has been appointed in the appropriate jurisdiction and that the successor guardian has, “qualified and posted a bond in an amount required by the foreign court.”
Terminating Guardianship in Florida: Removal of the Guardian
Seeking to terminate a guardian for a cause is referred to as “removal.” Section 744.474 of Florida’s guardianship statute outlines 21 specific reasons why a guardian may be removed. Some examples of these reasons include:
- “Fraud in obtaining her or his appointment.”
- “Failure to discharge her or his duties.”
- “Abuse of her or his powers.”
- “An incapacity or illness, including substance abuse, which renders the guardian incapable of discharging her or his duties.”
- “Failure to comply with any order of the court.”
- “The wasting, embezzlement, or other mismanagement of the ward’s property.”
- “Development of a conflict of interest between the ward and the guardian.”
Less severe transgressions can support petitions for removal as well. For example, a “failure to comply with the rules for timely filing the initial and annual guardianship reports” can potentially justify a petition for removal, as can a “failure to fulfill the guardianship education requirements.”
When it is necessary for a guardian to be removed, the procedure for seeking removal is fairly straightforward. Florida’s guardianship statute simply states:
“Proceedings for removal of a guardian may be instituted by the court, by any surety or other interested person, or by the ward. Reasonable notice shall be given to the guardian. On the hearing, the court may enter an order that is proper considering the pleadings and the evidence.”
In order to ensure that your petition for removal is adequate, and in order to ensure that you are prepared to counter any arguments presented by the guardian as to why he or she should not be removed, it is strongly advised that you seek legal representation. An experienced attorney at Beller & Bustamante, P.L., can help, and we can take action promptly, if necessary, in order to protect the ward.
Terminating Guardianship in Florida: What Happens Next?
When seeking to resign as a guardian or to have a guardian removed, it is important to have a plan for what will happen next. What is necessary will depend on the reason for terminating the guardianship and the current legal and mental capacity of the ward:
1. A Successor Guardian Is Appointed
If a successor guardian is to be appointed, the successor must be identified and must qualify to serve as the ward’s guardian. The successor must also be approved by the probate court before the existing guardianship can be terminated.
2. The Ward Becomes Sui Juris or Regains Capacity
If the ward has become sui juris (i.e., a minor has turned 18) or has regained capacity, then the guardianship will be terminated and the former ward will assume responsibility for his or her own affairs.
3. The Guardian Is Unable to Locate the Ward
If the guardianship is being terminated due to the inability to locate the ward, once the guardian’s resignation is approved, the guardian will no longer have legal responsibility for the ward’s wellbeing or the management of the ward’s property.
4. The Ward Is Deceased
If the ward is deceased, then the guardianship can be fully and finally terminated. Florida Probate Rule 5.680 states, “[a] guardian of the person is discharged without further proceeding upon filing a certified copy of the ward’s death certificate.”
5. There Are Less-Restrictive Means for Meeting the Ward’s Needs
Finally, if there is a desire to terminate the guardianship because there is a less-restrictive means available for meeting the ward’s needs, then steps to establish these less-restrictive means can be taken in parallel with resignation proceedings in the Florida probate court.
Contact the Trusted Attorneys at Beller & Bustamante, P.L.
If you have questions about terminating a guardianship in Florida, we would be happy to help you understand your situation and make informed decisions about moving forward. To speak with an experienced attorney in confidence, please call us directly or inquire online today.