Most people who wish to establish guardianship are relatives of a loved one who is incapacitated. However, some family members realize that they're incapable of handling certain financial matters on their own, and wish to surrender control of their affairs willingly. If you're unable to manage your finances, Florida law allows you to seek voluntary guardianship over property and assets.
Benefits of Voluntary Guardianship in Florida
The greatest benefit of guardianship is that it helps to protect your assets from those who would take advantage of you if you suffer an illness, are diagnosed with dementia, or have a progressive health condition that prevents you from making your own financial decisions.
There are other advantages to voluntary guardianship of property, including:
- Choosing your guardian. People suffering from illness may not recognize their inability to handle their affairs until it’s too late, forcing their families to step in and begin guardianship proceedings. A voluntary guardianship gives you the ability to choose who will serve as your guardian now, instead of taking a chance that a relative you might not trust will seek guardianship later.
- Setting your own limits. Taking action now allows you to control how much of your property is handled by your guardian. You may give your guardian authority to manage specific assets, such as stocks, or the entirety of an estate, and can choose how long the voluntary guardianship remains in effect.
- Protection of the courts. If you simply hand over control of your finances to a family member, there are no restrictions in place to prevent them from using your assets for their own gain. Voluntary guardianship is supervised by the courts, so your chosen guardian will be legally required to manage your affairs in a way that benefits you and your estate.
You should know that the state of Florida only recognizes voluntary guardianship over property. A voluntary guardian won't be able to make medical decisions on your behalf nor choose where you'll live. If you wish to give your guardian medical authority, you should consider including a durable power of attorney as part of your estate plan.
When would you want a Voluntary Guardianship?
Most estate planning is done to avoid any type of guardianships, but there are times when estate planning alone cannot stop people from hurting themselves. Here is an example of when we would think a voluntary guardianship would be helpful:
Mom, age 84, is getting forgetful but is still legally competent. She has a trustworthy daughter who lives locally but she also has a difficult son with "spending problems" who shows up to beg his mother for money. Mom is just not able to say "no" to lending (or giving!) her son money. The son has even taken mom to see an attorney to try and become her power of attorney. While mom is competent, placing her assets under a voluntary guardianship may be the best way to make sure mom cannot take her own money and just give it to her son.
Alternatives to a Voluntary Guardianship
While every situation is different, it is possible that a good estate plan can prevent a guardianship, such as through creating a revocable living trust and naming a trusted person as the trustee. But this has limitations if, for instance, the elder is subject to bad influences from close family members, as an example.
The attorneys at DeLoach, Hofstra & Cavonis, P.A. can meet with you, listen to your concerns and help discuss options to make sure you or your loved one is protected.