A “guardian of the property” is responsible for managing the financial affairs of the ward. A court-appointed guardian cannot simply walk away or be “fired” by the ward. Although the procedure for ending this arrangement or replacing the guardian depends on the reason being asserted, approval by the court is required. The most common reasons are listed below.
Reason No. 1: Voluntary Resignation by the Guardian
To resign his position voluntarily, a guardian must file a notice of his intent to resign to (i) the court and (ii) to his bond surety. He must also deliver the ward’s assets and all relevant records to the successor guardian. The court may refuse to accept the resignation if it would place the interests of the ward in jeopardy (which is likely if no successor guardian has been appointed).
Reason No. 2: Change of the Ward’s Legal Domicile (Relocation)
Court approval is required for the ward to be relocated. For the ward to move to another county, the guardian must transfer the ward’s file to the court in the new county. However, the guardian is not necessarily relieved of his duties. For an out of state move, the guardian must complete his final duties (see below) and prove that the new state has appointed a new guardian.
Reason No. 3: Restoration of the Ward’s Legal Capacity
Since a guardianship was initiated in the first place because the guardian was either physically or mentally incapacitated (or both), restoration of the ward’s capacity removes the rationale for the guardianship. To terminate a guardianship in this basis, a “suggestion of capacity” must be filed with the court.
A physician will then examine the ward and issue a recommendation, but the court will make the final decision. The guardian must complete his final duties before the termination will be considered effective. There are also procedures to restore some but not all of the ward’s rights, which will require modifying the terms of the guardianship without terminating the guardianship..
Reason No. 4: Exhaustion of the Ward’s Assets
Once the ward’s assets have been exhausted, a guardian can petition the court to be relieved of his duties. The court will likely grant the petition as long as (i) the guardian submits a final accounting proving that the ward’s assets have been exhausted, and (ii) the court determines that the ward’s best interests will not be adversely affected.
Reason No. 5: Disappearance of the Ward
If the ward cannot be located for a significant length of time after reasonable efforts have been made, a guardian can be relieved of his duties by selling the guardian’s assets pursuant to court order, depositing the proceeds with the clerk of the court, and filing a final report with the court.
Reason No. 6: Death of the Ward
Even if the ward dies, the guardian is not relieved of his duties until the court orders a discharge. Until that happens, the guardian must continue to competently manage the ward’s assets. The discharge will take place only after the guardian has completed his final duties. The guardian may even be ordered to pay funeral expenses.
Reason No. 7: Involuntary Removal of a Guardian Due to Misconduct or Disqualification
The Florida Statutes guardian removal provisions allow the involuntary removal of a guardian for the following reasons:
- The guardian secured appointment as guardian through fraud
- Failure to perform mandatory guardianship duties
- Abuse of power
- Illness or substance abuse that renders the guardian incompetent to perform his duties
- Failure to comply with a court order
- Failure to return records or accounts of property sold when so required
- Failure to produce the ward’s assets when so required
- Waste, embezzlement, or mismanagement of ward property
- Failure to post bond or security when required to by a court order
- Failure to file evidence of survival and solvency of bond sureties with the annual guardianship plan
- Conviction of a felony
- Adjudication of guilt, or plea of guilty nolo contendere, to certain serious criminal offenses
- Appointment of a receiver, bankruptcy trustee, or liquidator (corporate guardians)
- Conflict of interest between the ward and the guardian
- Failure to comply with the requirements of the guardianship report
- Failure to file initial and annual guardianship reports as they become due
- Failure to complete guardianship education requirements
- Adverse change in the guardian’s financial status that disqualifies him from managing the ward’s finances
- Management of the ward’s finances is no longer required for circumstantial reasons
- Upon a showing by a qualified person that removal of the guardian would be in the best interests of the ward
- Intentional failure to submit guardianship records during an audit by the clerk of the circuit court
In order to determine whether any of the foregoing grounds apply, the court may appoint an Emergency Court Monitor to investigate and determine whether a guardian should be removed. Any interested person may petition the court to appoint an emergency guardian, and the court may also appoint an emergency guardian on its own initiative.
A Guardian’s Final Duties
Before the termination of a guardianship of the property, the guardian must:
- submit a final accounting to the court;
- distribute all guardianship assets; and
- file final guardian and attorney fee petitions.
The Stakes Are High
Whether you are a guardian seeking to be relieved of your duties or a relative or friend seeking to protect the ward from an unqualified or abusive guardian, you must act quickly. In the first case, a guardian could face civil or even criminal liability for attempting to walk away from his responsibilities without approval from the court. In the second case. failure to promptly remove an inappropriate guardian could irreparably harm the interests of the ward.
Don’t Let Circumstances Box You In — Take Action Today
Contact the guardianship attorneys at Beller & Bustamante, either online or by phone at (904) 288-4414, to schedule a consultation where we can discuss your case and answer your questions.We serve clients throughout Greater Jacksonville including Northside, Westside, Southside, Arlington, the Jacksonville Beaches and elsewhere in the metro area.