Do you have an adult temporary or permanent guardianship issue? Are you looking for information and options to help you make decisions when and if a loved one needs temporary or permanent guardianship? This article will provide you with valuable information as to what potential options you have with and without Court approval. This post does not focus on “pre-need guardianship” which deals with minor children (look for a separate post on that soon).

Bookmark this page, so you can use it as a resource. Also, feel free to share it with family or friends who might be dealing with a Florida Guardianship issue.

Also, we strongly suggest that if you have Guardianship needs that you seek representation from qualified Elder Law attorneys like, Tony Conticello and the Conticello Law Firm.

Don’t Go It Alone!

WHEN IS A GUARDIANSHIP APPROPRIATE?

Let’s start with the fact that, every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will consider appointing a substitute decision maker, usually called a “guardian.” Some states might call them a “conservator,” but in Florida there is a significant difference between these two terms, and we will focus only on Guardians.

The legal authority for adult guardianship in Florida is found in Chapter 744, Florida Statutes. The court rules that control the relationships among the court, the ward, the guardian, and the attorney are found in Part III, Probate Rules, Florida Rules of Court.

ADULT GUARDIANSHIP FORMS

As promised, this post has a link to Florida Adult Guardianship Forms.  Click Here for Guardian Forms published by Florida Courts. Additionally, the Florida Courts site provides with some great resources. However, we caution there are a lot of issues and intricacies that a qualified Florida Elder Law and Guardianship attorney, such as Conticello Law Firm, can help with.

WHAT IS A “WARD”?

Let’s start with terminology for the two most important parties the “Ward” and the “Guardian”. Guardianship is a legal relationship between a qualified competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”). The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a “conservator.” Florida has a different set of laws dealing with “conservatorship” so don’t confuse them with “guardianship”.

There are “plenary” (full) and limited (“partial) guardianships, depending on the circumstances. Typically, a Court will apply the least restrictive means to provide for the Ward.

INCAPACITY REQUIRED

The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to need guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions.

COURT PROCESS

In most states, anyone interested in the proposed ward’s well-being can request a guardianship. Florida law has specific guidelines on who can and who cannot be appointed a “Guardian.” Your Guardian Attorney can help you make that determination and file the Guardianship “Petition”, which is required for a Court to consider exercising rights over an otherwise free and independent person.

At the hearing, the Court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

WHO CAN BE A GUARDIAN AND WHAT IS A PRENEED GUARDIANSHIP?

Chapter 744, Florida Statues (click the link to see), sets forth specific guidelines on who can and who cannot be appointed a Guardian. In deciding, a Court will also consider a “Preneed Guardianship” designation made by the Ward. A Preneed Guardianship is a powerful estate planning tool used by good Elder Law attorneys where a person, while they are competent, designates a “Guardian” and successor “Guardians” to look after them should they later become incapable.  Court’s will often defer to a Preneed Guardianship designation after determining the Guardians are otherwise qualified. However, a Court does not have to follow them, as it has to determine the best interests of the “Ward” when making a Guardian appointment.  

A Guardian need not be a person at all — it can be a non-profit agency or a public or private corporation.

 
GUARDIANS HAVE REPORTING REQUIREMENTS

Courts require Guardians to file reports with the Court periodically to ensure they are accountable for their actions. The purpose of reporting is to ensure the Guardian is acting in the best interests of the Ward. Given the broad authority a Guardian is often given, there is potential for abuse.

One reporting requirement a Guardian must fulfill is to provide detailed “Inventory” reports to the Court of the Ward’s property. In many situations, a Court will require a Guardian to obtain a Court’s prior approval before taking certain actions.

OTHER ESTATE PLAN DOCUMENTS THAT HELP LIMIT THE SCOPE OF GUARDIANSHIPS

The following LIST includes estate plan documents that Florida Elder Law Attorneys, such as the Conticello Law Firm, often use when creating estate plans for Seniors and a brief explanation as to why:

• • Elder Law Enhanced Durable Power of Attorney. A durable power of attorney is a legal binding document often used in Estate planning. The “Principal” grants certain powers to another person or entity, known as the agent or attorney-in-fact.  In Florida, the attorney-in-fact, has legal authority to immediately act for the Principal based upon the powers granted to them. This includes financial, business, and other matters. Having a Power-of-Attorney in place can limit the scope of what a Guardian is needed for. Elder Law attorneys craft “enhanced” Durable Powers of Attorney to give the attorney-in-fact as much flexibility to act as the Principal desires. These durable powers of attorney can limit the scope of a Guardianship.
  • Revocable and Irrevocable Living Trusts. Elder Law attorneys have a variety of “trust” options that we deploy to assist our clients. The two most notable are “Irrevocable Trusts” and “Revocable Living Trusts.” The main difference is that the principal (or grantor) who sets them up can make changes to their Revocable Living Trusts, but cannot to an Irrevocable Trust. The goal of both is the same, remove property and assets from ownership of the individual, and make the Trust the new owner. The grantor designates Trustees (including themselves) to make decisions as to what happens to the Trust owned property and assets. So, in the event the grantor is incapacitated, a “successor trustee” will automatically step up and take over the decisions related to the trust-owned property. The Trust is the “rule book” setting directions, guidelines, and restrictions on what the Trustee can do and cannot do.  A properly drafted trust may not technically limit the Court’s scope of Guardianship’s power, but in reality all the property and assets which are owned by the trust are generally and usually outside of the scope of the Court’s purview.
    
    

CONTACT CONTICELLO LAW FIRM TODAY

It is best to hire and get a qualified Florida Elder Law Attorney, like the Conticello Law Firm, to assist you in planning for guardianship issues. Contact Elder Law Attorney Tony Conticello today by calling 850-888-2529, emailing [email protected], or by checking us out at www.conticellolawfirm.com.