Most guardianship cases in Florida aren’t handled by board-certified elder law attorneys. They’re handled by general practitioners, probate attorneys who occasionally take a guardianship, or estate planning attorneys who got asked by a client and didn’t say no. That’s not a moral failing. It’s a market reality. There aren’t enough board-certified elder law attorneys in Florida to handle every guardianship that gets filed.
The problem is that guardianship has more procedural traps than almost any other area of Florida practice, and the cases where things go wrong tend to land on Jill’s desk after the damage is already done.
I asked her what she sees most often.
She named four. Each one is worth understanding.
Failure to set up a restricted depository. Under §744.351 and §69.031, Florida Statutes, a guardian of the property generally must place the ward’s liquid assets in a restricted depository — a bank account where funds cannot be withdrawn without a court order. In most South Florida circuits, including Broward, this is required as a matter of local practice for any meaningful asset balance. When the depository isn’t set up, the guardian has unrestricted access to the ward’s money. That sounds like a convenience problem. It isn’t. It’s a fiduciary breach exposure. If anything goes wrong with those funds — even an honest mistake — the guardian has no protection from a surcharge action, and the ward has no protection at all. Cleaning this up after the fact involves court orders, surety bond adjustments, and sometimes an explanation to the judge about why the previous attorney didn’t do it.
No approved budget. Florida Probate Rule 5.696 requires a guardian of the property to file an annual guardianship plan that includes a budget for the ward’s care and expenses. The guardian cannot spend money outside that budget without seeking court approval. When the budget isn’t filed, or is filed sloppily, the guardian ends up either underspending — leaving the ward without needed care — or overspending and running into objections at the annual accounting stage. The cleanup involves filing amended plans, justifying past expenditures, and occasionally returning funds to the estate. None of that should have been necessary.
Moving the ward out of the county or state without a court order. §744.1098, Florida Statutes governs the change of a ward’s residence. A guardian generally cannot change the ward’s residence to a location outside Florida without court approval, and many Florida counties impose similar requirements for moves between counties. We see well-meaning family-member guardians who move the ward to live with them in another state, thinking they’re doing the right thing, only to discover six months later that the move was unauthorized and the entire situation needs to be unwound or ratified retroactively. The court does not love being asked to ratify after the fact.
Missing or late reports. Annual guardianship reports — both the plan and the accounting — are not optional. They are statutory requirements with statutory deadlines. Guardians who miss these are subject to removal, surcharge, and personal liability. Attorneys who fail to file them on time, or file them incomplete, expose their clients to all of the above. When Jill takes over a case mid-stream, the first question is usually “where are the last two annual reports?” The answer is often “we never filed them.” That’s a problem that gets worse the longer it sits.
The pattern across all four is the same. None of these mistakes is exotic. None of them require advanced technical knowledge to avoid. They require a practitioner who handles guardianships often enough to know that the procedural infrastructure matters as much as the substantive arguments. An attorney who takes one guardianship a year is not going to internalize the difference between a budgeted expense and an unbudgeted one, or remember to set up the restricted depository at the front end of the case.
If you are the family member of a ward and your guardianship case is being handled by someone who doesn’t do this regularly, this is the kind of post that should make you ask questions. If the answer to “do we have a restricted depository?” is “what’s a restricted depository?”, you have a problem.