Adult Guardianship and Conservatorship Petition Requirements in Florida
At a glance
| Proceeding and state terminology | Chapter 744 uses a verified incapacity petition (§ 744.3201) plus a separate verified guardian-appointment petition (§ 744.334), which may be filed together. One process determines the specific rights affected; the other requests a limited or plenary guardian of the person, property, or both. |
|---|---|
| Who may file and where | Any adult may execute the incapacity petition (§ 744.3201). Incapacity venue is where the alleged incapacitated person resides or is found; appointment venue for a Florida resident is the county of residence, with a found-county option when the adult is located elsewhere (§ 744.1097). |
| What the petition must contain | The incapacity petition must identify the parties and next of kin, give observed facts and knowledgeable witnesses, identify the physician, state which rights are allegedly impaired, and address existing assistance including supported decision-making (§ 744.3201). The appointment petition must identify the proposed guardian, limited/plenary scope, alternatives and why insufficient, kin, and the nature/value of property (§ 744.334). |
| Proof required for appointment | Partial or total incapacity must be proved by clear and convincing evidence (§ 744.331(5)-(6)). The written order must identify the exact incapacity, legal disabilities, and rights the adult cannot exercise; total incapacity requires findings that the adult is totally without capacity to care for self or property. |
| Alternatives the court must address | Mandatory at filing and decision. Both petitions address assistance or alternatives and why insufficient (§§ 744.3201, 744.334). The court may not appoint a guardian if an alternative sufficiently addresses the adult's problems, and a plenary guardian is disfavored when a less restrictive form works (§§ 744.1012, 744.331(6)(b)). |
| Notice, service, and hearing timing | The incapacity and appointment petitions must be served on and read to the adult; copies also go to appointed counsel and identified next of kin (§ 744.331(1)). The adjudicatory hearing is 10–30 days after the last committee report absent waiver/good cause. If appointment follows the incapacity hearing immediately, no further notice is required; a later appointment hearing requires reasonable notice (§ 744.3371). |
| Counsel and hearing rights | Court-appointed counsel is mandatory in every incapacity case; the adult may substitute chosen counsel (§ 744.331(2)). The adult must attend unless the adult or counsel waives attendance or the court finds good cause. The adult may object to committee reports at least 5 days before hearing and invoke the evidence rules; § 744.331 supplies a judicial adjudicatory hearing but no statutory jury right. |
| Medical evidence or court evaluator | Within 5 days after filing, the court appoints a 3-member examining committee; one member must be a psychiatrist or other physician, all must examine the adult, and each files a report within 15 days (§ 744.331(3)). Reports must reach the petitioner and counsel at least 10 days before hearing; if a majority finds no incapacity in any respect, the petition must be dismissed. |
| Limits on the order | The order removes only specifically proved rights; the adult retains every right not removed, and no guardian may be appointed if a sufficient alternative exists (§ 744.331(6)). Emergency temporary guardianship is separate: imminent serious harm or property loss, enumerated powers, appointed counsel, ordinarily 24-hour notice, and a 90-day term subject to one extension (§ 744.3031). |
Requirements one by one
Proceeding and state terminology
Florida separates two decisions. A verified petition under § 744.3201 asks the circuit court to determine which rights, if any, the adult lacks capacity to exercise. A second verified petition under § 744.334 asks the court to appoint a limited or plenary guardian and identifies the proposed guardian and requested scope. The appointment petition may be filed with the incapacity petition, but the court still must make the incapacity findings before transferring rights.
Who may file and where
Section 744.3201(1) says an adult person may execute the incapacity petition. Under § 744.1097, the incapacity case belongs where the alleged incapacitated person resides or is found. For a Florida resident, appointment venue is the county of residence, although both proceedings may be brought in the county where the adult is found when that differs from the residence county.
What the petition must contain
The § 744.3201 incapacity petition must identify the petitioner and adult, state the adult's primary language, describe any help the adult uses to exercise rights (including supported decision-making) and why it is inadequate, give the observed facts supporting incapacity and the people with personal knowledge, identify the attending or family physician, list the rights allegedly affected, and identify next of kin.
The § 744.334 appointment petition adds the proposed guardian, why that person should serve, whether the request is limited or plenary, existing or prior guardianship alternatives, why a guardian advocate or other alternative is insufficient, and the nature and value of property involved.
Proof required for appointment
Section 744.331(5)(c) requires clear and convincing evidence of partial or total incapacity. The resulting written order must identify the exact nature and scope of incapacity, the decisions the adult cannot make, the legal disabilities imposed, and the specific rights affected. A total-incapacity order must include facts demonstrating that the adult is totally without capacity to care for self or property.
Alternatives the court must address
Alternatives appear at every stage. Section 744.3201 requires the incapacity petition to address help already used. Section 744.334 requires the appointment petition to identify alternatives and say why they are insufficient. Section 744.331(6)(b) then bars appointment if an alternative sufficiently addresses the adult's problems. The legislative direction in § 744.1012 is to explore less restrictive assistance before appointing a plenary guardian.
Notice, service, and hearing timing
Section 744.331(1) requires the petitions to be served on and read to the adult. Appointed counsel receives the notice and papers, and identified next of kin must also be served. After the three committee reports are filed, the adjudicatory hearing ordinarily occurs no sooner than 10 days and no later than 30 days, subject to waiver or good cause.
If the appointment petition is heard immediately after the incapacity hearing, § 744.3371 requires no second notice. If it is heard later, reasonable notice must go to the adult, counsel, any serving guardian, next of kin, and anyone else the court directs.
Counsel and hearing rights
Florida appoints counsel in every incapacity case under § 744.331(2)(b), and the adult may substitute a chosen lawyer. The current 2025 compilation still points to § 27.511(6) for which office or private lawyer is appointed; 2026 Chapter 2026-154 changed that technical cross-reference to § 27.511(7), effective July 1, 2026, without changing the universal right to appointed counsel.
The adult must be present at the adjudicatory hearing unless the adult or counsel waives attendance or the court finds good cause. The petitioner and adult may object to a committee report in writing no later than five days before the hearing; a timely objection requires the court to apply the evidence rules to admissibility. Section 744.331 creates a judicial adjudicatory hearing but does not create a jury-trial right.
Medical evidence or court evaluator
Within five days after filing, § 744.331(3) requires the court to appoint three examining-committee members. One must be a psychiatrist or other physician; the other qualified disciplines include psychology, nursing, social work, gerontology, and other expertise the court accepts. Each member examines the adult and files a report within 15 days addressing diagnosis and prognosis, functional ability, the rights the adult can retain, and the factual basis for any limitation.
The reports must reach the petitioner and appointed counsel at least 10 days before the hearing unless the timing is waived. If a majority concludes the adult is not incapacitated in any respect, the court must dismiss the petition.
Limits on the order
The court may remove only the rights the adult lacks capacity to exercise, and § 744.331(6)(e) says the adult retains all rights not specifically removed. The court cannot appoint a guardian when a sufficient alternative exists, and a total or plenary result requires specific findings of total incapacity.
Emergency temporary guardianship under § 744.3031 is separate. It requires an already-filed incapacity petition and an imminent threat of serious harm or property loss, gives the temporary guardian only powers specifically enumerated by the court, guarantees counsel, ordinarily requires 24 hours' notice, and expires after 90 days unless extended once while the emergency continues.
What trips people up
The examining committee does not appoint the guardian. Its reports are evidence. The court still conducts the hearing, applies the clear-and-convincing standard, identifies each right affected, and decides whether an alternative avoids guardianship.
The petitions must be read to the adult, not merely mailed or handed over. Section 744.331(1) expressly requires both service and reading, a detail that is easy to miss in a generic service checklist.
A plenary request is not a default fallback. The statute requires rights to be handled individually, leaves unremoved rights with the adult, and prohibits appointment altogether when a sufficient alternative exists.
Common questions
Can the adult replace the court-appointed lawyer? Yes. Section 744.331(2)(b) expressly permits the alleged incapacitated person to substitute their own attorney for the appointed attorney.
What happens if two of the three examiners find no incapacity at all? The court must dismiss the petition under § 744.331(4); the case does not proceed to appointment merely because the petitioner or third examiner disagrees.
Statutes and sources
- Fla. Stat. § 744.1097 — incapacity and appointment venue. https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/Sections/0744.1097.html (accessed 2026-07-18)
- Fla. Stat. § 744.3201 — verified incapacity petition and required allegations. https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/Sections/0744.3201.html (accessed 2026-07-18)
- Fla. Stat. § 744.334 — verified appointment petition, scope, proposed guardian, alternatives, and property. https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/Sections/0744.334.html (accessed 2026-07-18)
- Fla. Stat. § 744.1012 — least-restrictive legislative direction. https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/Sections/0744.1012.html (accessed 2026-07-18)
- Fla. Stat. § 744.331 — service, counsel, examining committee, hearing, clear-and-convincing proof, alternatives, and retained rights. https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/Sections/0744.331.html (accessed 2026-07-18)
- Fla. Stat. § 744.3371 — appointment-hearing notice. https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/Sections/0744.3371.html (accessed 2026-07-18)
- Fla. Stat. § 744.3031 — emergency temporary guardianship boundary. https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/Sections/0744.3031.html (accessed 2026-07-18)
- 2026 Fla. Laws ch. 2026-154 — effective July 1, 2026 technical correction to the appointed-counsel office cross-reference in § 744.331(2)(a). https://www.flsenate.gov/Session/Bill/2026/177/BillText/er/PDF (accessed 2026-07-18)
Source links
Every statute quoted above, linked, with the date we checked it.
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