Conservatorship in Florida vs. Guardianship: Petition, Hearing, Costs

If you’re searching for conservatorship in Florida, the first thing to know is that Florida doesn’t really use that word. The state handles what most people mean by “conservatorship” through its guardianship law in Chapter 744 of the Florida Statutes. When an adult can no longer manage personal care, finances, or both because of mental or physical incapacity, a circuit court can appoint a guardian to step in. The process requires a verified petition, an evaluation by a three-member examining committee, and a court hearing where incapacity must be proven by clear and convincing evidence. Florida law is built around one core principle: take away only the rights the person truly cannot exercise, and leave everything else alone.

The word “conservator” appears in a few corners of Florida law, but if you need someone appointed to oversee an incapacitated adult’s affairs, you’re working within the guardianship framework. The terms in this article match what you’ll see on court filings and in judges’ orders.

Guardian of the Person, Guardian of the Property, or Both

Florida separates authority over the body from authority over the wallet. A guardian of the person handles healthcare decisions, living arrangements, and daily care. A guardian of the property manages money, assets, and financial obligations. One person can hold both roles, or the court can split them between two different guardians. Which type you need (or whether you need both) shapes everything that follows, including the petition itself.

Filing the Petition for Incapacity

The case starts when any adult files a verified petition in the circuit court of the county where the alleged incapacitated person lives. The petition must identify the person’s name, age, and address, lay out the factual basis for believing they’re incapacitated, and specify which rights from the statutory list the petitioner believes the person can no longer exercise.¹ It must also name witnesses with personal knowledge of the person’s condition.

One requirement catches many families off guard. The petition must state whether the person already uses any form of assistance, such as supported decision-making, and if so, explain why that assistance is no longer enough.¹ Florida law explicitly favors less restrictive options over full guardianship, and the petition is where the court first checks whether you’ve considered them.

The Examining Committee and the Hearing

Within five days of the petition being filed, the court appoints a three-member examining committee. At least one member must be a psychiatrist or other physician. The others can be psychologists, social workers, gerontologists, advanced practice registered nurses, or similarly qualified professionals, and at least one member must have expertise related to the type of incapacity alleged.²

The committee can’t include anyone connected to the petitioner, the proposed guardian, or their attorneys, and the person’s treating physician is generally excluded, though the committee should consult with that physician when possible. Each committee member must complete at least four hours of initial training and two hours of continuing education every two years.²

The court also appoints an attorney to represent the alleged incapacitated person. This attorney is the person’s advocate throughout the proceeding, not a neutral party. At the adjudicatory hearing, the petitioner must establish incapacity by clear and convincing evidence, a higher bar than the “more likely than not” standard used in most civil cases.² The judge weighs all the evidence and makes an independent determination; the committee’s conclusions don’t bind the court.

The Court Must Rule Out Alternatives First

Before appointing anyone, the court is required to decide whether a less restrictive alternative would adequately address the person’s needs. If one exists that would do the job, the court cannot appoint a guardian at all.² This is not a formality. Florida’s legislative intent calls for exploring alternatives before resorting to a full guardian.³

Alternatives the court will consider include:

A durable power of attorney executed while the person still had capacity, authorizing an agent to handle financial or healthcare decisions.
A health care surrogate designation, which allows the named person to make medical decisions if the principal becomes incapacitated.
Supported decision-making, where the person keeps decision-making authority but gets help from trusted advisors.
A trust, where a trustee is already managing the assets, potentially eliminating the need for a guardian of the property.

There is an important exception. If someone files a verified statement with a good-faith belief that an existing trust, trust amendment, or power of attorney is invalid, the court won’t treat those documents as a sufficient alternative.² That rule prevents someone holding a questionable power of attorney from using it to block a guardianship the person actually needs.

Voluntary Guardianship for a Competent Adult

Not every guardianship involves a contested incapacity finding. A mentally competent adult who is physically unable to manage their own property can voluntarily petition for a guardian. No finding of incapacity is required; the person understands what they’re doing and is choosing to delegate.⁴

The petition must include a certificate from a licensed physician confirming that the person is competent to understand the arrangement and is voluntarily delegating authority. The court can limit the guardianship to specific property. Each year, the guardian files an annual report that includes a fresh physician’s certificate confirming the person still understands and consents. The person can terminate the voluntary guardianship at any time by filing a notice with the court.⁴

Limited and Plenary Guardianship

Florida strongly prefers removing only the specific rights a person cannot exercise. The court’s order must spell out the nature and scope of the incapacity, the specific areas where the person can’t make informed decisions, and which rights are being transferred to the guardian. The person retains every right not explicitly removed.²

A limited guardian exercises only those rights the court has specifically transferred. Someone might need help managing investments but remain fully capable of choosing where to live and what medical treatment to accept. In that case the court appoints a limited guardian of the property and leaves personal decisions with the individual. A plenary guardian has authority over all delegable rights, but even plenary status doesn’t remove rights that can’t be delegated, such as the right to counsel or the right to be treated with dignity.

Who Can Serve as Guardian

Any Florida resident who is at least 18 and legally competent can serve. Nonresidents can serve only if they’re related to the ward by blood, adoption, or marriage, or related to someone who qualifies under those categories.⁵

Several categories are disqualified:

Convicted felons, and anyone found to have committed abuse, abandonment, or neglect of a child.
Creditors of the ward, and anyone who provides professional or business services to the ward, unless they’re a close family member or the court finds the conflict insubstantial.
Healthcare providers treating the ward, unless the court specifically finds no conflict of interest.
Judges, unless they’re related to the ward and serve without pay.

The restriction on paid service providers trips families up. A home health aide who has cared for someone for years generally cannot also serve as guardian, however trusted, because of the conflict between providing paid services and overseeing the person’s finances.⁵ When no suitable family member is available, the court can appoint a professional guardian who is registered with the Office of Public and Professional Guardians.

Emergency Temporary Guardianship

When someone faces an immediate threat to their health, safety, or property, the court can appoint an emergency temporary guardian before the full incapacity determination is complete. The court must specifically find imminent danger: the person’s physical or mental health is at serious risk, or their property is in danger of being wasted or stolen.⁶

The alleged incapacitated person and their attorney must receive at least 24 hours’ notice before the emergency hearing, unless the petitioner shows that even that delay would cause substantial harm. The court appoints counsel for the person. The emergency guardian’s authority expires after 90 days or when a permanent guardian is appointed, whichever comes first, and the court can extend it once for another 90 days if conditions still require it.⁶

What the Guardian Has to Do After Appointment

A guardian is a fiduciary and may exercise only the rights the court has specifically removed from the ward and delegated to the guardian. The guardian must act in good faith, within the scope of the court’s order, and never against the ward’s best interests.⁷

A guardian of the property must protect, preserve, and prudently invest the ward’s assets, keep clear records of every transaction, pay debts and taxes, and deliver property to the appropriate person when the guardianship ends. The standard is the care a prudent person would use handling another person’s property.⁷ A guardian of the person must consider the ward’s expressed desires, allow contact with family and friends absent genuine risk of harm, and honor the ward’s reasonable preferences about living arrangements.

Annual Reports and Accountings

The court maintains ongoing oversight through required reports. The guardian files an initial guardianship report, then annual reports thereafter.⁷

A guardian of the property must file an annual accounting with a complete record of all money received and spent, a schedule of the ward’s assets at the beginning and end of the period, and a statement of the ward’s residence and health. It must be filed within 90 days after the anniversary of the guardianship’s creation and verified by the guardian. Copies go to the ward (unless the ward is a minor or totally incapacitated), the ward’s attorney, and anyone else the court directs. When all the ward’s assets sit at a single designated financial institution, the court may authorize a simplified process using the institution’s annual statement instead.⁸ Missing deadlines or filing incomplete reports can lead to penalties or removal. The annual accounting is the primary mechanism courts use to catch financial abuse.

Conflicts of Interest

Without prior court approval, a guardian cannot have any financial interest in a business transaction with the ward, acquire any interest adverse to the ward, be named as a beneficiary on the ward’s life insurance or pension (unless the ward made that designation before being found incapacitated), or buy, rent, or sell property to or from a business owned by the guardian or the guardian’s close relatives. Professional guardians face a stricter rule: they cannot purchase property from or lend money to their ward under any circumstances. Transactions that violate these rules are voidable, and the guardian can be removed, surcharged for losses, or both.⁹ The statute also bars kickbacks, commissions, and referral fees in connection with goods or services provided to the ward.

Rights the Ward Keeps

Being found incapacitated does not erase a person’s legal existence. Florida law lists rights that every ward retains, regardless of the scope of the guardianship:

To be treated with dignity and respect, and protected against abuse, neglect, and exploitation.
To an annual review of the guardianship plan, and continuing review of whether the restrictions on their rights are still necessary.
To be restored to capacity at the earliest possible time.
To remain as independent as possible, with reasonable preferences about living arrangements honored.
To be informed about how their property is being managed.
To have access to the courts and to legal counsel.
To receive visitors and communicate with others.
To receive notice of all proceedings related to their capacity and guardianship.
To privacy.

¹⁰

The right to counsel matters in practice. The court appoints an attorney for the ward during the initial proceedings, and the ward can retain or be appointed counsel at any later stage. The ward also keeps the right to challenge the guardianship, including petitioning for a change in guardian or for restoration of rights.

What a Guardianship Costs

Guardianship is expensive, and the costs come primarily out of the ward’s own estate. Florida law entitles both the guardian and any attorney rendering services on the ward’s behalf to reasonable compensation and reimbursement for expenses.¹¹

When the court reviews a fee petition, it weighs the time and labor involved, the complexity of the issues, customary local rates, the size and income of the ward’s estate, and the results obtained. Every petition must include an itemized description of services. If the guardian also happens to be an attorney, the court must separately identify legal work versus guardian work and confirm no conflict exists.¹¹

Families should budget for attorney fees on both sides (the petitioner’s and the ward’s court-appointed counsel), examining committee evaluation costs, court filing fees, the guardian’s ongoing compensation, and bonding costs if a professional guardian is involved. For modest estates, the total can consume a meaningful share of the ward’s assets over time.

Ending the Guardianship or Restoring Rights

A Florida guardianship is not necessarily permanent. Any interested person, including the ward, can file a “suggestion of capacity” arguing that the ward has regained the ability to exercise some or all of the rights that were removed.¹²

Once the suggestion is filed, the court immediately appoints a physician to examine the ward. The physician has 20 days to submit a report. If no one objects and the medical evidence supports restoration, the court can enter an order restoring rights without a full hearing, based on a preponderance of the evidence (a lower standard than the clear and convincing evidence needed to establish the guardianship). If objections are filed or the medical evidence suggests only partial restoration, the court holds a hearing where the ward bears the burden of proving restoration is warranted.¹²

Partial restoration is common. If someone’s cognitive abilities have improved enough to manage daily decisions but complex financial matters remain difficult, the court can restore personal rights while leaving a guardian of the property in place. When rights are partially restored, the guardian must file a new guardianship report within 60 days reflecting the reduced scope of authority.¹²

1
FindLaw. Florida Statutes 744.3201 – Petition to Determine Incapacity
2
Online Sunshine. Florida Statutes 744.331 – Procedures to Determine Incapacity
3
Online Sunshine. Florida Statutes 744.1012 – Legislative Intent
4
Online Sunshine. Florida Statutes 744.341 – Voluntary Guardianship
5
Florida Senate. Florida Statutes 744.309 – Who May Be Appointed Guardian of a Resident Ward
6
Online Sunshine. Florida Statutes 744.3031 – Emergency Temporary Guardianship
7
Florida Senate. Florida Statutes 744.361 – Powers and Duties of Guardian
8
Florida Senate. Florida Statutes 744.3678 – Annual Accounting
9
Online Sunshine. Florida Statutes 744.446 – Conflicts of Interest, Prohibited Activities
10
Florida eLaws. Florida Statutes 744.3215 – Rights of Persons Determined Incapacitated
11
Online Sunshine. Florida Statutes 744.108 – Guardian and Attorney Fees and Expenses
12
Florida Senate. Florida Statutes 744.464 – Restoration to Capacity