“Life is what happens when you’re busy making other plans.” – John Lennon
Those words perfectly describe how the actions (and sometimes the inactions) of our day-to-day lives determine the future. Whether we plan ahead or not, life happens.
If a loved one suddenly falls ill or is unable to make decisions, it can be difficult to manage their affairs, especially if they didn’t create a comprehensive estate plan. When a relative’s health reaches the unfortunate point when they can longer care for themselves, their safety, and their property—and there’s no incapacity planning made in advance—the only remaining choice is to commence a guardianship proceeding.
Because a guardianship involves the combined stress of caring for an ailing loved one and involvement in a court proceeding, it’s vital that you engage the right attorney to guide you through the process.
What is a Guardianship?
Guardianship is the process of making one person legally responsible to make decisions for another person. All adult guardianships rest on one thing: incapacity. If a court agrees that someone is incapacitated, a guardian is generally appointed to care for that person, known as the Ward. Once appointed, the guardian is under a legal obligation to manage the affairs of the Ward.
There are three types of guardianship of an adult:
- A guardian of the person is restricted to making decisions about the Ward’s body and health, such as where the Ward lives and their medical care.
- A guardian of property can only make decisions concerning the Ward’s assets, such as paying the Ward’s bills and making financial investments on their behalf.
- A plenary guardian has complete control of both the individual and their property.
Who Qualifies to Serve as a Guardian?
While the judge will appoint the guardian after a hearing in which incapacity is determined (among other aspects), a guardian may be any adult who:
Has no felony convictions, AND
Is a resident of the State of Florida, OR
Does not live in Florida but is a qualified relative (blood relative, legally adopted child of the Ward, etc.)
In appointing a guardian, the judge will also take into consideration any wishes expressed by the incapacitated person, either during the appointment hearing or by the Ward’s pre-need written declaration.
At our law firm, the durable power of attorney we create typically names the nominated attorney-in-fact as the pre-need guardian. This means that in the event a guardian is needed, the court will generally appoint the attorney-in-fact as the guardian. If you are seeking a guardianship for your loved one, be sure to look at the power of attorney—it may contain the designation of a pre-need guardian.
Different Types of Florida Guardianships
While we generally think about guardianships for the elderly and for people who have had tragic accidents, there are a number of types of guardianships in Florida:
- Plenary Guardianship (this page concentrates on the typical case for guardianships)
- Emergency Temporary Guardianships
- Standby Guardianships (appointment by the court as the alternate guardian, upon petition)
- Pre-Need Guardians (formal process for naming a guardian in case you become incapacitated)
- Voluntary Guardianships
- Foreign Guardianships (for when an incapacitated person has real property in Florida)
- Guardian Advocates
- Minor Guardianships
How Can I Get Guardianship Over a Loved One?
You cannot establish guardianship simply by having a doctor declare a loved one incapacitated. All guardianships are legal processes overseen by the Florida Court System. The proceeding to obtain guardianship for an adult is different from the process involving guardianship for a minor. In the case of an adult, a judge has to make a ruling declaring that the individual doesn’t have the ability to manage essential safety, health, and property needs.
The guardianship process typically involves:
You. You’ll have to file a petition for guardianship, which your attorney submits with evidence as to the extent of the incapacity.
Your loved one. Your loved one is subject to a physical examination, mental health examination, and functional assessment to determine whether any incapacity exists.
A committee of professionals. Your case goes before a committee of three members, which usually consists of two physicians and one person who has particular skill or training in aspects of incapacitation. After testing, all three members of the committee submit their findings to the court. If two out of three committee members believe the person is not incapacitated, the court will dismiss the petition. If two out of three committee members find the person incapacitated, a hearing date is set.
The incapacity hearing. Based on the evidence, a judge determines whether incapacity exists and if your loved one’s incapacitation is total or partial. The court may then appoint a guardian, usually a family member, to manage the affairs of the incapacitated.
If guardianship is granted, the court mandates certain obligations the guardian has to meet. Some of these may include providing the court with an annual accounting of the Ward’s assets or filing a detailed healthcare and treatment plan to the court every year.
Who Needs a Guardianship?
Guardianship may be needed in a variety of circumstances, with the restrictions depending on the loved one’s abilities and needs. While every situation varies, here are some common circumstances when a guardianship would be necessary to protect someone:
Mom has gotten older without doing her proper estate planning, including the creation of a durable power of attorney. Unfortunately, Mom suffers a stroke, and the family cannot pay her bills or use her money to arrange for proper care. Since Mom doesn’t have the capacity to do a power of attorney at this point, the family would need to seek a guardianship attorney to help manage mom’s financial affairs.
Dad created his incapacity planning documents but has experienced mood swings and memory problems. His family tried to talk to him about it, but Dad's mental condition prevents him from admitting anything is wrong. When Dad was found wandering around outside his house, his family took him to the doctor where he was diagnosed with dementia. Now, Dad is refusing to let anyone in the house, and he is a danger to himself. A durable power of attorney won’t help the situation, as it does not take away Dad’s rights to make his own decisions. A guardianship could help the family make sure Dad gets good health care and is taken care of in the right environment. It is likely that the guardianship process court would need to take his rights away in a situation like this so the appointed guardian can help make sure Dad gets the right care in the right place.
Mom has Alzheimer’s disease, but she’s getting good care in an assisted living facility and has designated Good Son as her power of attorney. Unfortunately, Bad Son has begun to visit Mom and is trying to move her out of the facility. Bad Son even brought a new power of attorney to Mom that revoked the power of attorney given to Good Son. In order to help Mom, Good Son will likely need to take control of the situation and obtain guardianship to prevent Bad Son from causing any more problems.
What about the movie I Care a Lot?
It is not often that the guardianship world is represented in movies or popular culture, but the Netflix movie I Care a Lot has brought a lot of attention to the guardianship world. Luckily, the laws in Florida provide a great deal of protection for a ward or alleged incapacitated person. Learn why I Care a Lot could not happen in Florida.