What is a Guardianship and When is One Necessary?

What is a Guardianship?

A Guardianship is a legal process wherein the Court intervenes and appoints a Guardian to assist an individual who no longer has the capacity to make rational decisions about his or her own life, welfare, and/or property.  In Florida, Guardianships are almost entirely controlled by Florida Statute Chapter 744.  Guardianships usually occur when a person becomes sick or injured.  However, they are also required in some situations where a minor receives a settlement or inheritance over a certain amount.

How does the Court get involved?

Someone has to ask the Court to get involved before it will.  Usually a family member or someone else who is close to the alleged incapacitated individual, or who is otherwise familiar with his or her condition will contact an attorney.  If the attorney has sufficient reason to believe that the individual is incapacitated, and believes that a Guardianship is the appropriate remedy for the situation, the attorney will then file formal requests called “petitions” on behalf of the concerned party.  These petitions serve as an invitation for the Court to step in and appoint a particular Guardian.  Once the attorney files the proper petitions, the Court must then decide whether the alleged incapacitated individual actually lacks capacity.  In order to make the correct determination, the Court must appoint a panel of three experts to evaluate the individual.  The Court will largely rely on these experts’ opinions as evidence in making its determination.  The Court will also often consider whether the individual is at risk for exploitation or undue influence.  If the Court finds that the individual is incapacitated and determines that other less restrictive alternatives are not available, only then can the Court appoint a Guardian.  A person who is found to be incapacitated is referred to as the “Ward” in subsequent legal proceedings.

What does a Guardian do?

It depends on the situation, but the short answer is only as much as the Court will allow.  Because a Guardianship removes the Ward’s rights to make certain decisions for him or herself in favor of the supervision and control of the Guardian, the Court is required to be as less restrictive as possible.  Therefore, if the Ward is still capable of doing some things but not others, the Court might only order a “Limited Guardianship,” which delegates some but not all delegable rights to the Guardian.  Generally, however, the Guardian’s duties and powers consist of managing the Ward’s finances, property, or other assets; governing the Ward’s living arrangements; and/or making medical decisions for the Ward.  When the Court delegates all of the Ward’s delegable rights to the Guardian, it is referred to as a “Plenary Guardianship.”  Regardless of the Ward’s condition, the Guardian should always account for the Ward’s wishes when practical.

Who can become a Guardian?

Anyone can petition to become the Guardian so long as they meet the criteria set forth in Florida Statute Chapter 744.  Most attorneys recommend hiring “Professional Guardians” who are often vastly more experienced than “Family Guardians.”  Professional Guardians, who are categorized as such if they are appointed as Guardian for three or more Wards at one time, are also required by Florida Law to undergo much more extensive training.  However, all Guardians must undergo background checks and pass extensive examination before a Court will choose them for appointment.  Once the Court chooses the right Guardian to appoint, the Court will still maintain vigilant supervision over the Guardianship to ensure that the Guardian continues to act in the Ward’s best interest.  As such, the Guardian is required to file regular reports and accounting with the Court.  This is another reason why hiring a Professional is recommended, as many Family Guardians often find themselves overwhelmed by the Court’s tenuous requirements.

Can I avoid a Guardianship?

Guardianships can and should be avoided where less restrictive alternatives are available.  The best and often only way to avoid a Guardianship is to plan ahead.  Below are some alternative planning strategies that can prevent a Guardianship from becoming necessary.  If these alternatives are available, the Court is usually required to implement them instead of a Guardianship.  However, once a person loses capacity, he or she can no longer validly execute these documents.

  • Durable Power of Attorney: This document names a trusted person thereafter referred to as the “attorney-in-fact” to manage the estate owner’s care and financial matters.  The attorney- in-fact will have whatever powers or authority that the document properly assigns.  The word “durable” refers to the fact that the powers are still maintained by the agent even after the owner loses capacity.
  • Revocable Trusts: When an estate owner creates a revocable trust, he or she names a successor trustee to manage his or her assets in the event of incapacity.  Usually, the trust includes a condition that must be met before the trustee can take control, such as a doctor’s pronouncement of incapacity.  Irrevocable trusts can also be a valuable planning tool for other Elder Law issues, such as Medicaid Planning.  However, revocable trusts are generally better suited for incapacity planning because they allow the creator or “settlor” to make changes after the trust is created.
  • Healthcare Surrogate: This document names another individual to take over healthcare decisions in the event of the document creator’s incapacity.  The surrogate has a responsibility to try to make medical care decisions that the creator would have made by consulting with providers and making judgments accordingly.
  • Living Will: A living will directs the withholding or withdrawal of life-prolonging procedures in the event of a terminal illness or a persistent negative state.  This can help avoid confusion and ensure that the wishes of the living will’s maker are respected.

Planning for incapacity is never a pleasant subject.  As such, most people prefer to keep it out of mind.  Unfortunately, this only results in fewer options and greater stress in times that are inherently stressful for your family.  To choose the best strategy for yourself and secure the peace of mind of your loved ones, contact a Board Certified Elder Law Attorney in your area who specializes in these issues so that you can plan ahead before it is too late.