Most people who wish to establish guardianship have already taken on the duties of caring for an ailing loved one. You may be cooking their meals, running them to hospital visits, or picking up their mail and paying bills on their behalf. However, there is a limit to how much you can legally do for your parent without the proper authority—and it is generally best to get this authority sooner rather than later.
Warning Signs That You May Need Guardianship Over an Elderly Relative
The choice to get legal control of a parent’s affairs can be unsettling, and can lead to family disagreements that push the decision, and the elder's safety, down the road. Unfortunately, putting off guardianship proceedings may force emergency action when your parent hits a crisis point, adding to your stress and discomfort in an already difficult time.
There are a few ways to tell if it’s time to start the guardianship process. For example, you may need legal help if there is a threat to your parent’s:
- Safety. Guardianship can help if a parent is suffering from a medical condition that often results in long-term decline (such as dementia, cancer, or organ failure) and he or she does not realize that they are unable to make the correct health care decisions.
- Life savings. The elderly are often targeted by scammers, caretakers, and even relatives looking to profit from their vulnerability. If you have seen strange transactions in your parent’s accounts or fear that someone is trying to gain access to their money, you should speak to us about guardianship.
- Health and well-being. If your parent has not appointed someone to act as the health care surrogate and the family does not get along, you will need guardianship to make decisions about their healthcare, housing, and long-term care. Under Florida law, if the elder has not created a health care surrogate, then the family would generally make decisions as the elder's health care proxy. But if the family does not get along and they do not agree on the health care decisions to be made, it is likely that a guardianship attorney would be necessary.
- Lack of Pre-Planning. Guardianships can often, but not always, be avoided through the proper estate planning. If your loved one has not created a durable power of attorney, for instance, and then loses capacity, then a guardianship will be needed to handle his or her affairs.
Lack of Capacity Standards for Guardianships
When a guardianship is sought, the court generally needs to find that the alleged incapacitated person lacks capacity. Here, an “incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. Further,
- To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
- To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.