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Elder Guardianships in Florida: Incapacity and Asset Protection
Guardianship is a powerful legal option in Florida, and one that should be pursued only after a great deal of consideration of options such as powers of attorney.
September 30, 2011 /Seniors PR News/ -- Most Florida parents are familiar with the role of child guardianship in protecting a minor's interests and well-being if he or she is left parentless by an untimely death. Later in life, many children of elderly parents must eventually consider legal protections to help a mother or father who can no longer handle a household, financial affairs, health care decisions and other matters.
Guardianship is the most powerful legal option available in such situations, but it is one that should be pursued only after a great deal of consideration based on sound advice. Seeking a legal determination of incapacity must not be taken lightly, and designation of a guardian requires a major investment of trust. Family members must realize the very real risks that a loved one's hard-earned assets can be wasted, leaving them no options aside from public facilities.
Determinations of Incapacity Under Florida Law
Florida guardianships are based on a formal determination of incapacity in probate court. State law provides that incapacitated means "a person who has been judicially determined to lack capacity to manage at least some of the property or to meet at least some essential health and safety requirements of such person."
Guardianships are relatively flexible, and can be designed to suit a variety of situations. "Plenary" guardianships provide for control of both the ward and his or her estate, while "limited" guardianships empower the guardian to make only specific types of decisions. Control of the person means everything from residency determinations to health care decisions, including end-of-life treatment options.
The fiduciary authorities that can be granted to a guardian include distribution of assets (everything from rent payments and clothing purchases to paying debts), applications for disability and other benefits, and investment of income from pensions, insurance and other sources.
Protecting Against Wasting of a Ward's Assets
One of the most potent aspects of legal guardianships is that, due to the formal legal recognition of the power, they are not easy to change. But Florida law provides for probate proceedings for removal of guardians due to restoration of a ward's capacity, a guardian's resignation and a change in the county where a ward lives.
A variety of other reasons involving the guardian's performance of duties can also be the basis removal, including:
- Fraud in becoming a guardian
- Failure to discharge duties
- Abuse of guardianship powers
- Illness or incapacity, including substance abuse
- Contempt of court
- A felony conviction
- Wasting or embezzlement of property, or other financial mismanagement
- Any showing that removal is in the best interests of the ward
Guardianship removal proceedings can be initiated by the court, a debtor, an interested person or the ward. Guardian advocates can be appointed in all probate proceedings for individuals with developmental disabilities.
Removal proceedings require a detailed explanation of reasons why the guardian should be removed. If removal is ordered, the removed guardian must provide the court with a full accounting within 20 days and turn over control of the ward's estate.
Considering Smart Alternatives to Formal Guardianship
Guardianship should always be considered as a last resort because of the many other options available for partial control of an elderly person's affairs. Designated powers of attorney (including living wills), living trusts, joint tenancy and personalized home health care can deliver all the peace of mind and security a family desires.
In the event that a family member or other interested person opposes an attempt to impose guardianship in a situation where it seems excessive, a Florida probate lawyer can provide much needed advice about the legal process. Swift and aggressive action is even more important if a person feels that an appointed guardian is taking advantage of or recklessly handling a ward's assets.
Article provided by Bryant Law Firm
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