Understanding “Less Restrictive Alternatives” in Florida Guardianship Cases

When a loved one becomes incapacitated, families often assume that guardianship is the only option. However, in Florida, a person may only be placed under the care and control of another person who functions as their legal “guardian” if specific criteria are properly established. One of the most crucial requirements is that the court determines that there is no “less restrictive” alternative to guardianship. But what does this mean? Our Tampa Guardianship Attorneys at Bleakley Bavol Denman & Grace explain this below. Keep reading!

What Are “Less Restrictive Alternatives” in Florida?

Once a competent adult has filed a petition to determine another person’s incapacity with the court, the court appoints an examining committee, whose work is to conduct an evaluation and report back to the court. The court then holds a hearing to review the committee’s reports. If the court finds that the alleged incapacitated person (AIP) is actually incapacitated, it must first determine if there is a less restrictive alternative to guardianship.

Under Florida law, courts are required to first consider options that protect a person without completely taking away their rights. Only after the court finds that there is no less restrictive alternative can it appoint a guardian and issue letters of guardianship. Florida Statutes section 744.2005 states that a guardianship order must be the least restrictive option available and must allow the incapacitated person to make the decisions which they are able to make.

Florida’s law aims to balance safety and independence. Instead of just taking away someone’s legal rights, the law is designed to ensure that an incapacitated person gets help while still staying in control of their life.

Why Do Less Restrictive Alternatives Matter in Florida?

In Florida guardianship cases, less restrictive alternatives matter because guardianship usually takes away a person’s crucial civil rights, including:

• The right to vote
• The right to enter into contracts
• The right to manage finances
• The right to marry

Florida courts recognize the importance of these rights, so if another legal tool can provide the necessary protection without stripping these rights away, the court must consider it. That is why proving less restrictive alternatives is often the central issue in Florida guardianship cases.

Common Less Restrictive Alternatives to Guardianship in Florida

Here are some of the common, less restrictive alternatives to guardianship in Florida. It’s vital to note that this is far from an exhaustive list.

Durable Power of Attorney

A power of attorney lets a mentally competent person authorize someone else to manage their finances, property, or medical decisions. A durable power of attorney remains effective even if the grantor becomes incapacitated and can help avoid guardianship by providing a less restrictive way of handling personal and financial affairs.

Trusts

Trusts allow individuals to place assets under the management of a trustee. Properly structured trusts can protect assets without the need for a court-appointed guardian.

Health Care Surrogate or Proxy

A health care surrogate or proxy is someone designated to make medical decisions if a person becomes unable to do so. This option can ensure medical care aligns with the individual’s wishes while removing the need for a court-appointed guardian.

Contact BBDG Law for Help Choosing the Right Option

Our skilled Tampa guardianship attorneys at Bleakley, Bavol, Denman & Grace can help you determine if full guardianship is necessary or if there is a less restrictive alternative solution that can help protect your loved one while preserving their rights and independence. Contact us today to schedule a consultation.