910 N. Fern Creek Avenue, Orlando, FL 32803

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Practice Area · 02

Guardianship

Fla. Stat. § 744 · ETG · Plenary · Limited

Florida guardianship proceedings — from Emergency Temporary Guardianship under Fla. Stat. § 744.3031 to plenary and limited guardianship — require an attorney who knows both the law and the local court. We have represented petitioners, respondents, and wards in the Orange County Circuit Court for more than two decades, including contested guardianship, removal of a guardian, and restoration of a ward's rights.

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Why Choose Yergey & Yergey

Why Families Choose Yergey & Yergey for Guardianship

Guardianship matters carry a weight that few other legal proceedings match. You are asking a court to determine that someone you love is no longer able to make decisions for themselves — or you are fighting to protect a loved one from a guardian who should not have that authority. This work demands an attorney with courtroom fluency, knowledge of the procedural requirements of Florida's guardianship statutes, and the human awareness to navigate family dynamics that are rarely simple.

  • More than 20 years of guardianship representation in Orange County

    Emergency Temporary Guardianship petitions. Plenary and limited guardianship proceedings. Contested guardianship. Guardian advocacy. Annual accountings. Restoration of capacity. Minor guardianship. Voluntary guardianship. We have been in Orange County guardianship proceedings long enough that this is not new territory — for us or the court.

  • Founding President, Florida Guardianship Support Network (flgsn.org)

    David A. Yergey III is the founding president of Florida's only statewide nonprofit dedicated to guardianship resources and reform. The network has raised more than $700,000 in support of Florida guardianship families. This is not a marketing credential — it reflects a sustained, personal commitment to the population of people who need this kind of help.

  • Public advocacy that contributed to statutory reform

    David A. Yergey III filed objections in proceedings involving a professional guardian whose conduct contributed to the passage of Florida HB 709 / SB 994 (signed June 18, 2020, Ch. 2020-35, L.O.F.), which substantially strengthened Florida's professional guardian oversight statutes.

  • Dual Florida Supreme Court Certified Mediators

    When a guardianship dispute can be resolved through mediation rather than a full contested hearing, both partners hold the certification to mediate that resolution.

  • Super Lawyers Rising Stars 2022, 2023, 2024

    Thomson Reuters recognition, plus the 2021 John R. Hamilton Law Firm Award of Excellence from the Legal Aid Society of the Orange County Bar Association.

  • Court-appointed fiduciary

    David A. Yergey III has served as a court-appointed Guardian in addition to representing parties in guardianship proceedings — giving him direct experience with what guardians are actually required to do under Florida law.

Core Documents

The Forms of Florida Guardianship

Florida guardianship is not one process — it is several, each tailored to a different situation. Chapter 744 of the Florida Statutes defines the proceedings below. The right path depends on whether the alleged incapacitated person can still make some decisions, whether the matter is an emergency, whether the ward is a minor or an adult, and whether the ward (or someone acting on the ward's behalf) is consenting.

Emergency Temporary Guardianship (ETG)

Fla. Stat. § 744.3031

When immediate harm is alleged — exploitation, abuse, neglect, an urgent medical decision — the court can appoint a temporary guardian on an expedited basis, before the full incapacity proceeding is complete. ETGs typically last up to 90 days (extendable once for cause) and are limited to the specific powers the court determines are necessary to address the emergency. We file ETGs when the situation will not safely wait for a plenary determination — and we defend against them when an ETG has been used inappropriately.

Plenary Guardianship

Fla. Stat. § 744.331 · § 744.3215

A plenary guardianship is what most people picture: the court determines that an adult has lost the capacity to exercise some or all of the rights enumerated in Fla. Stat. § 744.3215, and appoints a guardian to exercise those rights on the ward's behalf. The proceeding requires a verified petition, the appointment of a three-member examining committee, a hearing on incapacity, and — only after incapacity is adjudicated — a separate hearing to appoint the guardian. Plenary guardianship is the most restrictive option and is appropriate only when less-restrictive alternatives have been considered and are inadequate.

Limited Guardianship

Fla. Stat. § 744.102(9)(a)

If the ward retains capacity over some areas of life but not others — for example, can manage daily personal decisions but not complex finances — Florida law requires the court to fashion a limited guardianship rather than a plenary one. The order specifies which rights the ward retains and which the guardian exercises. We routinely advocate for limited guardianship as the least-restrictive path consistent with the ward's protection.

Voluntary Guardianship

Fla. Stat. § 744.341

A mentally competent adult who is unable to manage his or her property because of age or physical infirmity may petition for the appointment of a voluntary guardian over property. There is no incapacity adjudication and no examining committee — the petitioner consents. Voluntary guardianship can be terminated at any time on the petitioner's request.

Guardian Advocate (Developmental Disability)

Fla. Stat. § 393.12

For a person with a developmental disability who is unable to consent to medical treatment or otherwise needs decision-making assistance — but who does not require the full apparatus of an incapacity proceeding — Florida provides the Guardian Advocate process. It is faster and less invasive than a Chapter 744 plenary guardianship and is the appropriate vehicle when the ward's diagnosis falls within § 393.063.

Minor Guardianship

Fla. Stat. § 744.301 · § 744.3021

Natural guardians (parents) generally have authority over a minor's person without court involvement. A guardianship of the property of a minor is required when the minor receives an inheritance, settlement, or other asset above the statutory threshold ($15,000), and a guardianship of the person is required when both natural parents are unavailable or have had their rights terminated. We handle each.

Pre-Need Guardian Designation

Fla. Stat. § 744.3045 · § 744.3046

An adult or a parent of a minor can name in advance the person they want the court to appoint as guardian if a guardianship is ever required. The designation is not self-executing — it does not create a guardianship — but it carries significant weight if a petition is later filed. We routinely include pre-need designations in estate plans as a backstop to advance directives.

Annual Guardianship Plan & Accounting

Fla. Stat. § 744.3675 · § 744.3678

Once a guardian is appointed, ongoing court oversight begins. Guardians of the person file an annual plan describing the ward's residence, medical condition, and social condition. Guardians of the property file an annual accounting documenting every receipt and disbursement. We prepare these filings for guardians and audit them on behalf of beneficiaries and other interested persons.

Restoration of Capacity

Fla. Stat. § 744.464

When the ward's condition improves — a recovery from temporary incapacity, successful treatment, or simply a wrongful initial adjudication — the ward (or any interested person) can petition for restoration of capacity. The court reappoints an examining committee, holds a hearing, and may restore some or all of the rights previously removed. We represent wards in restoration proceedings and respond to them on behalf of guardians where appropriate.

Removal of a Guardian & Contested Guardianship

Fla. Stat. § 744.474 · § 744.477

A guardian who has failed to discharge duties — including failure to file plans or accountings, exploitation, abuse, or neglect — can be removed by the court on petition of any interested person. Contested guardianship cases also include competing petitions for appointment, family members fighting over which relative should serve, and challenges to a guardian's compensation. David A. Yergey III has objected to professional guardians whose conduct contributed to passage of HB 709 / SB 994 (Ch. 2020-35, L.O.F.) — the 2020 statutory reform of Florida's professional-guardian oversight system.

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Frequently Asked

Guardianship FAQs

What is the difference between guardianship and a power of attorney?
A durable power of attorney is signed voluntarily by a competent adult who appoints an agent. It avoids guardianship entirely if it is current, properly drafted, and accepted by the institutions that need to honor it. A guardianship is a court proceeding initiated when no valid power of attorney is in place (or when one has failed) and an adult cannot make decisions for himself or herself. Powers of attorney are private and inexpensive; guardianships are public, court-supervised, and costlier — which is why we strongly favor advance planning whenever the family still has time to do it.
How long does a guardianship case take in Orange County?
An Emergency Temporary Guardianship can be granted within days when the petition is filed properly with supporting affidavits. A standard plenary incapacity petition typically reaches a hearing within 60–90 days from filing — driven by the appointment and reporting of the three-member examining committee under Fla. Stat. § 744.331 — followed by a separate hearing to appoint the guardian. Contested cases, restoration proceedings, and removal proceedings extend that timeline. We tell every client at the consultation what timing to expect for their specific facts.
Who pays the attorney's fees in a guardianship?
Reasonable attorney's fees and costs incurred in a guardianship proceeding are payable from the ward's assets when the court determines the work benefited the ward (Fla. Stat. § 744.108). That includes the fees of the petitioner's attorney, the court-appointed attorney for the alleged incapacitated person, and (in many cases) the fees of an attorney objecting to the appointment. Where the assets are limited or where the work did not benefit the ward, the petitioning party may be responsible.
Can a guardian be removed?
Yes — under Fla. Stat. § 744.474, the court can remove a guardian for cause, including failure to file plans or accountings, exploitation of the ward, mismanagement of property, or unfitness to serve. Any interested person can petition for removal. We handle removal petitions on both sides — for families whose loved one is being harmed by a guardian, and for guardians defending against unfounded removal allegations.
Is professional or family guardianship better?
It depends on the family. A trustworthy, available family member who understands the legal duties is often the right choice. Where family members are unavailable, in conflict, or unable to perform the duties, a professional guardian — someone registered with the Office of Public and Professional Guardians under Fla. Stat. § 744.2002 — is often necessary. The court weighs the ward's preferences (where they can be expressed), the relationship history, and the ability to perform the role. We help clients evaluate the right fit and, when professional guardianship is needed, work with reputable professional guardians we know.
What is the examining committee?
When an incapacity petition is filed, the court appoints three members — typically a physician or psychiatrist plus two other qualified examiners (psychologist, gerontologist, registered nurse, advanced practice nurse, social worker, etc.) — to evaluate the alleged incapacitated person and report to the court (Fla. Stat. § 744.331). Each member files a written report. Their reports are central to the incapacity hearing and are also discoverable by the parties. Cross-examination of committee members at the hearing is sometimes appropriate, especially in close cases.
Can a guardian sell the ward's home or change the ward's will?
Significant decisions affecting the ward's property — including the sale of homestead real estate, pursuing certain claims, settlement of major claims, voting securities, and (in narrow circumstances) modifications of estate-planning documents — require prior court approval (Fla. Stat. §§ 744.441, 744.446). A guardian acting outside the scope of the court's authorization is exposed to surcharge and removal. We advise guardians on what requires court authorization before they act.
Are there alternatives to guardianship we should consider first?
Yes, and Florida law requires the court to consider less-restrictive alternatives before adjudicating incapacity. The most common alternatives are: a current durable power of attorney, a healthcare surrogate designation, a properly funded revocable trust with successor-trustee provisions, a representative payee arrangement for Social Security or VA benefits, and joint ownership of accounts. When an existing tool can solve the problem, guardianship is unnecessary. We assess these alternatives in every initial consultation.