Probate, Guardianship
 & Mental Health

The Clerk's Probate, Guardianship & Mental Health Department maintains the files on Probate Estates, Wills, Trust and Guardianships for both minors and incapacitated persons.  They monitor, file and store all pending case files and all wills that have been deposited with the Probate Department.

Probate


Probate is the court procedure by which a will is proved to be valid or invalid; the legal process wherein the estate of a decedent is administered.  The probate process involves collecting a decedent's assets, liquidating liabilities, paying necessary taxes and distributing property to heirs.

A will is a document executed by a person which disposes of his/her property after his/her death.  It generally names a Personal Representative to administer the estate.  After the death of the person, the custodian of the will must deposit the will with the Clerk's Office, within ten (10) days after receiving information that the person is deceased.  The custodian should supply the person's date of death or the person's social security number to the Clerk upon deposit of the will, if this information is available.

No, an attorney is not necessary to deposit the will with the Clerk's Office.  However, you may want to consult with an attorney before filing so that he/she may determine whether probate proceedings will be necessary.

  1. Formal Administration

    This type of proceeding is used when it is necessary to appoint a personal representative to act on behalf of the estate because there are considerable assets or other special circumstances.  The capacity in which the representative will act is determined by the court at the time of the appointment and letters of administration will be issued to the representative so that he/she may complete the administration of the estate.

  2. Summary Administration

    Summary administration may be filed when the value of the entire estate does not exceed $75,000 or when the decedent has been dead for more than two years.

  3. Disposition of Personal Property Without Administration

    The disposition is filed to request release of assets of the deceased to the person who paid the final expenses; such as funeral bills or medical bills for the last 60 days.  This procedure may be accomplished with the filing of a petition.  The form required to file the disposition is available from the Clerk's Office in the Probate Department.  This cannot include real property.  The value of the decedent's assets is less than $6,000.

The following must be provided:

 

The court will enter an order either allowing or disallowing the release of the assets.  A certified copy of the order is then mailed to the petitioner.

The property will be distributed in accordance with Florida Law.

It will be necessary for an attorney to petition the court to appoint a personal representative to administer the estate.

Probate proceedings are initiated with the filing of a Petition by an interested person asking to be appointed Personal Representative and/or distribute property depending on size and complexity of property.  The Petition is prepared by an Attorney.  The appointed person will be responsible for the Estate until all bills are paid and the balance of the Estate is distributed to the rightful beneficiaries.

According to Rule 5.030 of the Florida Probate Rules, a personal representative must be represented by an attorney admitted to practice in Florida unless the personal representative remains the sole interested person.  An "interested person" is any person who may reasonably be expected to be affected by the outcome of the proceeding.  A personal representative who is an attorney admitted to practice in Florida may represent himself or herself.

 

Guardianship

 

Osceola County yearly monitors approximately 500-600 guardianships.  While the majority of these cases involve the elderly, many also involve the safeguarding of proceeds for minor children.

A guardian is a person who has been appointed by the court to act on behalf of a ward's person, property or both. 

A competent adult may name a Pre-Need Guardian by making a written declaration that names such guardian to serve in the event of the declarant's incapacity.  The declaration must be signed by the declarant and two (2) witnesses.

A person 18 years of age or older who has an interest in the protection of the personal or property rights of the incapacitated person may qualify to serve as a guardian.  An application for "Appointment of Guardian" must accompany the petition.  The court will review the application to ensure the guardian to be appointed will best serve the needs of the ward. 

A limited Guardian is a person who has been appointed by the court to exercise the legal rights and powers specifically designated in the court's order.  The Court will enter such an order after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her own person or property.  The court may also enter such an order after a person has voluntarily petitioned for the appointment of a limited guardian.

A plenary guardian is a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her own person and/or property.

Without adjudication of incapacity, the court shall appoint a guardian of the property of a resident or nonresident person who, though mentally competent, is incapable of the care, custody and management of his or her estate by reason of age or physical infirmity and who has voluntarily petitioned for the appointment.  The petition shall be accompanied by a certificate of a licensed physician specifying that he or she has examined the petitioner and that the petitioner is competent to understand the nature of the guardianship and his or her delegation of authority.

Unless the voluntary guardianship is limited, any guardian appointed under this section has the same duties and responsibilities as are provided by law for plenary guardians of the property, generally.

A voluntary guardianship may be terminated by the ward by filing a notice with the court that the voluntary guardianship is terminated.  A copy of the Notice must be served on all interested persons.

The legislature finds that private guardianship is inadequate where there is no willing and responsible family member or friend, other person, bank, or corporation available to serve as guardian for an incapacitated person, and such person does not have adequate income or wealth for the compensation of a private guardian.  The legislature intends through this act to establish the Statewide Public Guardianship Office, and permit the establishment of offices of public guardian for the purpose of providing guardianship services for incapacitated persons when no private guardian is available.  The legislature further finds that alternatives to guardianship and less intrusive means of assistance should always be explored, including, but not limited to, guardian advocates, before an individual's rights are removed through an adjudication of incapacity.  The purpose of this legislation is to provide guardian only to those persons whose needs cannot be met through less drastic means of intervention.

An incapacitated person is a person who has been judicially determined to lack the capacity necessary to manage at least some of his or her property or who cannot provide for his or her own health and safety.

The guardian of the person is required to file an Initial Guardianship Plan and an Annual Guardianship Plan.  The guardian of the property is required to file an inventory and an annual financial return.  Reports should be filed with the Clerk's Probate Division.

The initial reports must be filed within 60 days after letters of guardianship are issued.  The annual reports must be filed 90 days after the last day of the anniversary month in which the letters of guardianship were issued.

The law places upon the Clerk of the Circuit Court the responsibility of auditing these reports.  The Court will then review the Clerk's audit.

There are no audit fees for an initial or annual guardianship plan.  The audit fee for the initial inventory is $75, if the assets of the ward exceed $25,000.  The audit fee for the annual financial return ranges from $15 to $225, depending on the value of the estate.

A Probate Court may appoint a guardian advocate, without an adjudication of incapacity, for a person with developmental disabilities, if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate or if the person has voluntarily petitioned for the appointment of a guardian advocate.  Except as otherwise specified, the proceeding shall be governed by the Florida Rules of Civil Procedure.

Basic Guardianship training can be acquired through the Council on Aging, Office of the Public Guardian (407) 846-8532 or UCF Downtown Academic Center (407) 207-4920.

 

Mental Health


The Probate Division is also responsible for administering the law in numerous areas of mental health.  

 

  1. Assist in filing pleadings related to mental health
  2. Provide information to general public, attorneys and other agencies on general court procedures
  3. Copy, certify, and conform copies of court orders and documents
  4. Assists the general public and governmental agencies in researching records through the use of computers and microfilm
  1. Filing Baker and Marchman Act petitions
  2. Copying and certifying various legal documents from files upon request
  3. Providing information to the general public by searching files and film
  4. Filing Declaration of Pre-Need Guardian
  5. Filing Petitions for return of personal property
  1. Filing Involuntary Placement Petitions
  2. Issuing Subpoenas and Notice of Hearings
  3. Setting hearing dates
  4. Accept Writ of Habeas Corpus being filed
  1. Filing various petitions related to mental health 
  2. Scheduling court hearings
  3. Issuing Subpoenas and Notices of Hearing
  1. Filing various petitions related to mental health
  2. Setting hearing dates
  3. Issuing Subpoenas and Notices of Hearings
  4. Screening court files and documents and pleadings to determine that all necessary procedural steps have been taken prior to presentation to the court for hearings and execution of orders
  1. Petition for Involuntary Examination on ExParte Order/Information Sheet for ExParte Involuntary Examination
  2. Petition for Involuntary Examination and Stabilization (Substance Abuse)/Information Sheet for Substance Abuse
  3. Petition for Involuntary Treatment for Substance Abuse Impaired person
  1. Petition for Involuntary Examination on ExParte (Baker Act) -  
    F.S. 394.463

This petition can be filed by a person(s) who has first hand knowledge of the situation.  The purpose of this petition is to initiate the Baker Act procedure for emergency pickup and evaluation for persons who are mentally ill and refuse to seek treatment and are in a danger to themselves and/or others.

    2.  Writ of Habeas Corpus - F.S. 394.459

This petition is filed by a person detained in a hospital, their relative, friend, guardian, representative, or attorney on their behalf.  A writ is filed when a person detained in a receiving or treatment facility alleges that they are being unjustly denied a right or privilege.   This petition requires immediate attention upon receipt by the court.

    3.  Involuntary Placement and Placement Certificate - F.S. 394.467

This petition is filed by an administrator or designee of a designated Baker Act facility.  The petition is filed when a person is determined to be a danger to themselves or others, and are in need of hospitalization.

    4.  Involuntary Assessment and Stabilization (Marchman Act) - F.S. 397

The purpose of this petition is to obtain a court order for substance abuse treatment when the respondent has refused to voluntarily receive care.  The petition may be filed by one family member or three (3) citizens of Florida.

    5.  Adult Protective Services - F.S. 415

These petitions are filed by the Department of Children and Family when the department has reason to believe a disabled or elderly adult is being abused, neglected, self-neglect or exploited and the person lacks the capacity to consent to service being provided.  A court order allows the department to provide services.

    6.  Determination of Incapacity - F.S. 744.3201

These petitions are filed when a person is alleged to be incapacitated mentally and/or physically.  The purpose of the petition is to have the person evaluated and a determination made as to whether the alleged incapacitated person is capable of retaining all of or certain legal rights.  This petition must be filed in conjunction with a Petition for Guardianship.

Marchman Act

A Marchman Act is a means of providing an individual in need of substance abuse services with emergency services and temporary detention for substance abuse evaluation and treatment when required, either on a voluntary or involuntary basis.

A voluntary admission is when a person who wishes to enter treatment for substance abuse applies to a service provider for voluntary admission.

An involuntary admission is when there is good faith reason to believe the person is substance abuse impaired and, because of such impairment, has lost the power of self control with respect to substance use; and either has inflicted, attempted or threatened to inflict, or unless admitted, is likely to inflict physical harm on himself/herself or another; or the person's judgment has been so impaired because of substance abuse that he/she is incapable of appreciating the need for substance abuse services and of making a rational decision in regard to substance abuse services.

Yes.  There is additional criteria for a voluntary and involuntary Marchman Act that is not included here.  For example, a minor may seek voluntary admission for substance abuse services without parental or guardian consent.

A law enforcement officer may take a person into protective custody when the minor or adult appears to meet admission criteria and is brought to the attention of law enforcement or is in a public place.

In addition to a law enforcement officer's authority to implement protective custody measures in emergency involuntary situations, a private practitioner, the person's spouse or guardian, any relative of the person, the director of a licensed service provider or the director's designee, or any three (3) responsible adults who have personal knowledge of the person's substance abuse impairment or, in the case of a minor, the minor's parent, legal guardian, legal custodian or licensed service provider can file an Involuntary Marchman Act Petition.

If you have personal knowledge of the person's substance abuse impairment and believe that because of the impairment the person has lost the power of self control with respect to substance abuse and you have reason to believe that the person has inflicted or is likely to inflict harm on himself, herself or others unless admitted or; the person is incapable of appreciating the need for care because of the substance abuse, you may file a Marchman Act Petition.

You will need to contact a service provider and confirm that a bed is available should the court find it necessary to enter an order authorizing the involuntary assessment and stabilization of the person.

A Marchman Act Petition may be filed during normal business hours in the Clerk's Office located on the second floor of the new courthouse building, 2 Courthouse Square, Kissimmee, Florida.

You will need to bring some form of identification  (including social security number and date of birth) and an address or location where the person can be located by the sheriff's office.

After you complete the Marchman Act Petition, the court will review the petition and if the person is represented by an attorney, conduct a hearing within 10 days; or, without the appointment of an attorney and relying solely on the contents of the petition, enter an order authorizing the involuntary stabilization and assessment of the person.

A person may be detained for involuntary assessment and stabilization for a period not to exceed 5 days.

For general information, you may call the Clerk's Probate Division at (407) 742-3503.

 

Baker Act

A Baker Act is a means of providing individuals with emergency services and temporary detention for mental health evaluation and treatment when required, either on a voluntary or an involuntary basis.

A voluntary Baker Act is when a person 18 years of age or older, or a parent or guardian of a person age 17 or under, makes application for admission to a facility for observation, diagnosis or treatment.

An involuntary Baker Act is when a person is taken to a receiving facility for involuntary examination when there is reason to believe that he or she is mentally ill and because of his or her mental illness, the person has refused voluntary examination; the person is unable to determine for himself or herself whether examination is necessary and without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself and such refusal could pose a threat of harm to his or her well being; and there is a substantial likelihood that without care or treatment, the person will cause serious bodily harm to himself, herself or others in the near future as evidenced by recent behavior.

Yes, there is additional criteria for a voluntary and involuntary Baker Act not included here.  For example, a law enforcement officer may transport an individual to a facility for evaluation if there is reason to believe that the individual's behavior meets statutory guidelines for involuntary examination.

If you are willing to swear in a Petition for Involuntary Examination that you have personally witnessed an individual causing harm to themselves or others, an "ExParte" for an Involuntary Examination can be completed at the Clerk's Office, Mental Health Division.

A family member or interested person may fill out the petition and affidavit in the Clerk's Office.  You will need to provide proper identification and have personally witnessed the individual's actions.

Your sworn affidavit will be reviewed by the court.  If the court believes, based on the evidence provided in the petition and affidavit, the judge will enter an order for the sheriff to pick up and transport the person to the nearest receiving facility.

The sheriff will make every attempt to take the person into custody and transport the person to a facility.  If the person cannot be located by the sheriff, the sheriff will hold the order for seven (7) days and continue attempts to take the person into custody.

A person may not be detained for more than 72 hours.

For general information, you may call the Clerk's Probate Division at (407) 742-3503.