Florida law allows both voluntary and involuntary guardianships.  A voluntary guardianship may be established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntary petitions for the appointment.

Adult guardianship is the process by which the court finds an individual’s ability to make decisions so impaired that the court gives the right to make decisions to another person. Guardianships only  warranted when no less restrictive alternative such as durable power of attorney trust , health care surrogate or proxy, or other for of preneed directive is found by the court to be appropriate ad available.

When the court removes an individual’s right to order his or her own affairs there is an accompanying duty to protect the individual. 

One of the courts duties is to appoint a guardian.  All adult and minor guardianships are subject to court oversight.   

Guardianship monitoring is a mechanism Florida courts can use to review a guardians’ activities, assess the well-being of the ward, and ensure the well being of the ward, and ensure that the ward’s assests are being protected.

2011 Florida Statutes:

Guardians must be represented by an attorney who will serve as “attorney of record” Guardians are usually  required to furnish a bond and may be required to complete a court –approved training program the clerk of the court reviews all the annual reports of guardians of the person and the property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.

*07/05/2006:  ( clerks case number:  1120006GA0001170001xx)

Petition for the exemption of guardian from education requirements

Guardianship:

An ideal guardianship monitoring program encompasses four major service areas: 

1. Initial and on –going screening and reviewing of guardians

1. Reporting on the well being of the ward

1. Reporting of the protection

1. Case administration

The monitoring process should be transparent  and open   communication between the monitor and the judge should be in writing and become part of the official court record. 

*One of the courts duties is to appoint a guardian.   All adult and minor guardianships are subject to court oversight.

The mission of guardianship monitoring is to collect provide, and evaluate information about the well-being and property of all persons adjudicated of having a legal incapacity so that the court can fulfill its legal obligation to protect and preserve the interest of the ward and there by promote confidence in the judicial process..

A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently use it for the ward’s support, and account for it by filing detailed annual reports with the court.    In addition, the guardian must obtain court approval for certain financial transactions.  The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward.  The guardian of  the person  must also present to the court every year a detailed plan for the wards care.  

Society’s obligation to protect the well being of its most vulnerable members. 

External accountability  was not upheld  or enforced.

Checklist of the guardian’s’ actions and responsibilities:

1. Visit the ward

1. Secure an attorney

1. Attend incapacity hearing

1. Once appointed:

1. Attend the ward’s immediate needs, appropriate housing medical treatment if necessary etc.


2. Investigate: gather the ward’s assets and conduct a personal inventory

1. Obtain letters of Guardianship

1. Set up depository account with standing orders of withdrawals for standard and recurring expenses.


2. Transfer title on accounts and set up guardianship accounts taking into proper consideration accounts sowing evidence of prior estate planning

1. Notify sources of income of guardianship

1. Obtain appraiser if necessary to establish value of inventory

1. Obtain services of financial planner, if appropriate

1. Submit petition to court to perform acts requiring prior court approval

1. Submit to court required reports ( Initial guardianship Plan)

1. Visit the ward as needed based on the particular circumstances of the ward and minimum requirements

If a removed guardian fails to file a true, complete and financial  account of his or her guardianship or to turn over to his or her successor or the ward all the property of the ward and all  record  under the guardian’s control, or to pay to any successor guardian  ward any money due the ward by the guardian, the removed guardian may be held in contempt.  Those contempt proceedings may be instituted by the court , the ward or any interested party of the successors guardian.

The appointment of an attorney/guardian/executor ad litem to represent any defendant having a possessory interest against whom service by publication is made is required as a result of Shada v. Title &trust  Company of Florida, 457 So.2d553(Fla.4thD.C.A. 1984) which held that title was unmarketable when an attorney/guardian/executor ad litem was not appointed in a foreclosure action to represent the owner whose where about  were unknown.  The function of an attorney/guardian/executor ad litem is to raise any defenses the defendant might have. 

Where an attorney/executor/guardian ad litem was not appointed, but the plaintiff or their attorney has substantial information that the defendants  was  alive ( competent  of age and not in the service ) at the time service by publication was made, the company will sometimes rely upon an affidavit reciting eh facts known to the affiant which established that the defendant was alive.  Company approval must be obtained before relying upon such an affidavit.  The appointment of an attorney/guardian /executor ad litem does not cure defects in the service of process.   

A motion for a new trial or rehearing may be served with 10 days after the date the final judgment of foreclosure is entered in the court file.  Tls.R.Civ.P. 1.530(b) A  policy should not be issued fooling foreclosure until any such motions have been denied and the appeal period has

expired, unless exception is made to the consequences of the motion and appeal.  When the foreclosure sale is held and the certificate of title issued while such a motion is pending the title maybe issued upon subsequent denial of the motion and expiration fort the appeal period.

A Florida Guardianship  attorney can either help to represent the individual or represent others to make sure that the proper guardian is chosen and that they fulfill their fiduciary obligations  often we find that guardians do what they want and not necessary what is in the best interest of the ward. This can cause damages and can open the guardian to liability for the actions that they took. 

Florida statute: 720:

Estoppel: (n) 1.  A bar that prevents one from asserting a claim or right that contradicts what one has said or done  before or what has been legally established as true.

2.  A bar that prevents the relitigation of issues.

3.  An affirmative defense alleging good-faith reliance on a misleading representation and an injury or detrimental change in position resulting from that reliance.

Equitable estoppel.

1.  A defensive doctrine  preventing one part from taking unfair advantage of another when though false language, or conduct , the person  to be estopped has induced another person to act in a certain way, with the results that  person has been injured in some way. This doctrine is founded on principles of fraud.  The five essential elements of this type of estoppel are that

1: there was a false representation ofr concelement of material facts,

1. The representation was known to be false vy the party making it or the party was negligent in not knowing its falsity

1. It was believed to be true by the person to whom it was made

1. The party making the representation intended that it be acted on , or the person  acting on it was justified in assuming this intent

1. The party asserting estoppel acted on the representation in a way that will result in substantial prejudice unless the claim  of estoppel succeeds

Estoppel by representation: An estoppel that arises when one makes a statement or admission that induces another person to believe something and that results in that person’s reasonable and detrimental reliance on the belief especially equitable estoppel.   

Condominium assessments:

A first mortgagee that acquires title to a condominium unit by foreclosure or a deed in lieu of foreclosure is liable for the unpaid condominium assessments that become due prior to the mortgagee’s receipt of the certificate of title or deed in lieu.  However, the first mortgagee’s liability for these unpaid assessments cannot exceed one percent of the original debt, and is limited to  a period not exceeding six months.  This period begins running on the date the first mortgagee receives the last payment of principal or interest und eth mortgage. ( 718.116 (1) (a) F.S.

Restrictive covenants requiring lot owners to pay dues or assessment to a homeowner’s association frequently provide that a lien shall exist for these dues or assessments. Where the restrictive covenants are silent as  when the lien attaches , a lien will relate back to the time of the recording of the declaration of restrictions.

 Bessemer v. Gersten 381 So. 2d 1399 ( Fla. 1980)

The 2011   Florida Statutes: (702.07):

Power of courts and judges to set aside foreclosure decrees at any time before sale- The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale therof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs.

The 2011 Florida Statutes:  ( 702.08 )

Effect of setting aside foreclosure decree: whenever a decree of foreclosure has been so rescinded vacated, and set aside and the foreclosure proceedings dismissed as provided in s. 702.07 the mortgage together with its lien and the debt thereby secured shall be both in law and equity . completely relieved of all effects of any kind whatsoever resulting from or on account of the foreclosure proceedings and the decree of foreclosure and fully restored in all respects to the original status of the same as it existed prior to the foreclosure proceedings and the decree of foreclosure , and thereafter the same shall be for all purposes whatsoever legally of force and effect just as if foreclosure proceedings had never been instituted and the decree of foreclosure had never been made.