Visitation After a Guardian Is Appointed

The issue of visitation after the court legally appoints a guardian has recently become one of the most talked-about issues surrounding Florida guardianship law. On one hand, social interaction—especially among friends and family members—is critical to a protected person’s health and well-being and can increase their overall quality of life. However, on the other hand, the reasons leading to the appointment of a guardian cannot be ignored. Issues such as mental illness, poverty, dementia, abuse, and financial exploitation are front-and-center and complicate the court’s job of determining when visitation is appropriate after a guardian is appointed.

Notice: Please note that Rebeccah Beller is a Florida attorney specializing in guardianship matters in the state of Florida. Our legal team only handles guardianships within Florida and cannot provide assistance for cases outside of this jurisdiction.

What Is Guardianship?

Guardianship is the process by which the court grants one person the legal ability to act on another’s behalf. While a court can appoint a guardian in a variety of circumstances, most often, guardians are appointed in situations where a person suddenly becomes incapacitated to the point where they can no longer make their own decisions.

In some cases, a family member of the person who is alleged to need a guardian petitions the court for appointment as their loved one’s guardian. However, a court is under no obligation to appoint the family member seeking guardianship. Unless the petition is not contested by any party, and it is in the interests of the person over whom guardianship is sought, the court will conduct a series of hearings to determine whether guardianship is appropriate. The court will also conduct an independent determination to ensure that the person hoping to become the guardian is suitable for the role.

In some cases, family members are unable or unwilling to serve as guardians. Other times, family members may have contributed to the need for the appointment of a guardian by, for example, engaging in neglect, abuse, or financial exploitation. In these situations, the court will usually appoint an unrelated party.

Historically, once the court appointed a guardian, the guardian would assume the right to determine whom a protected person can have a relationship with. This meant that family members were at the mercy of a guardian if they wanted to have any contact with their loved one. However, in recent years, this has begun to change, with states realizing that protected people should have a say in who they interact with. Indeed, according to the National Guardianship Association’s Standards of Practice, a guardian “shall promote social interactions and meaningful relationships consistent with the preferences of the person under guardianship.” While these Standard of Practice are not binding laws themselves, many courts choose to follow them when there is not a state law directly on point.

In general, state laws vary in terms of a protected person’s right to associate with whomever they choose. However, almost every state, including Florida, restricts this right to some degree.

Florida Guardianship and the Right to Visitation

Florida is among those states that has legislation clarifying a protected person’s right to maintain relationships with family members. Under Florida Statutes Section 744.3215, a protected person retains the right to “receive visitors and communicate with others.” Also, Florida Statutes Section 744.361 provides the guardian must “allow the ward to maintain contact with family and friends unless the guardian believes that such contact may cause harm to the ward. However, further complicating matters, Section 744.3215 also provides that a court can delegate to a guardian the right to make decisions about a protected person’s “social environment or other social aspects of his or her life.”

Over time, courts have interpreted Florida guardianship law to allow guardians to reasonably restrict a protected person’s right to associate with friends and family members in certain situations. For example, a guardian may try to limit visitation in the following circumstances:

• The restriction is authorized by the court; or
• A protective order limits contact between the party seeking visitation and the protected person.

In addition, a guardian may legally attempt to reasonably restrict contact between a protected person and another party for a limited period of time if the guardian has “good cause to believe the restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological or financial harm.” The duration of a restriction depends on whether there is an existing familial relationship between the parties.

Notably, Florida guardianship law is unique in that it allows family members to challenge a court’s decision to limit or prohibit contact with a protected person. Florida Statutes Section 744.3715 provides that “any interested person, including the ward, may petition the court for review alleging that the guardian … is denying visitation between the ward and his or her relatives in violation of