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Florida Standby Guardian Law

According to the law of Florida, a standby guardian can be appointed by both parents or by a single surviving parent of a child.  The appointment can be made in a “written declaration” and it should name the person to be appointed as standby guardian for the child.  If there are two parents, both must sign. The document must also be witnessed.  This declaration signed by the parents and witnessed is filed with the clerk of the court.  This document is to be produced when a petition for incapacity or a death certificate commences the court process for appointment of guardian.

Even though the law states that consent of both parents are required for appointment of a standby guardian, the issues of locating and securing agreement of the non-custodial parent is not specifically addressed.  So also, the petition relating to incapacity or death is only filed for the “last surviving parent.”   This implies that any living parent would otherwise assume guardianship of the child.  Therefore a person who is the single head of a family must find the non-custodial parent, or explain to the court why that could not be done.

In cases where the non-custodial parent is found, but his/her agreement cannot be secured, a proceeding to override the refusal of such person should be initiated.  If the non-custodial parent is found, and his/her agreement is secured, s/he will need to sign the written designation in front of two witnesses.

For all practical purpose, the standby guardian of a child in Florida is a “plenary guardian,” meaning that the standby guardian stands in the place of the parent in respect to the child.

When the parent becomes incapacitated, the designated guardian should file a “Petition for Incapacity” with the Clerk of the Court.  An Examining Committee consisting of three experts will meet with the allegedly incapacitated parent within five days and report their conclusions to the court.  On adjudication of incapacity by the court, the guardian’s duties begin and thereafter within 20 days, the guardian must file a petition for confirmation of the guardianship.


Inside Florida Standby Guardian Law