WHAT IS GUARDIANSHIP?
A guardianship is a legal proceeding in which a the mental capacity of an individual is determined.
The proceeding is a public process started by filing a Petition, through an attorney, asking a Judge to appoint someone to have the legal power and responsibility for the care of an individual, and/or their assets.
The Judge appoints an attorney to represent the interests of the individual. A three member panel is named to examine the individual to determine if, and to what extent, the individual is incapacitated. Often family members, children from prior marriages and the individual’s current spouse have varying perspectives on whether or not the individual is incapacitated who should be the guardian. Once a guardian is appointed, there must be regular reports filed with the Court detailing the “care plan” for the individual and accounting for all expenses and transactions. Situations often arise where there is dispute as to the accounting, whether or not an asset should be sold, and if so, for how much. All of this is an ongoing process until the individual either recovers from their incapacity (and proves it in court) or dies.
As you may imagine, because of the court supervision, the court court costs, the attorneys, the accountants, the examining committee and the medical professionals, this is a very expensive and cumbersome process. In many cases, we can avoid this with some simple documentation executed before the need arises.
WHY ESTABLISH A GUARDIANSHIP?
Guardianships are established so that a loved one will receive the care they need, and to protect them and others. Also, if there are assets that are in the ward’s name only such as a car or bank accounts, or if there is real estate, and if there is no valid power of attorney in force, then a Guardianship will be necessary to obtain access to those assets. If the person suffered an injury at work or as the result of someone else’s mistake, then in order to settle a claim or lawsuit a Guardian often must be appointed to make sure the Ward is getting a fair settlement.
The Eldercare Locator lists “10 warning signs” to help families and older Americans determine if help is needed.
Has your family member:
Changed eating habits within the last year resulting in weight loss, having no appetite, or missed meals?
Neglected personal hygiene resulting in wearing dirty clothes, body odor, bad breath, neglected nails and teeth, sores on the skin?
Neglected their home so it is not as clean or sanitary as you remember growing up?
Exhibited inappropriate behavior by being unusually loud or quiet, paranoid, agitated, making phone calls at all hours?
Changed relationship patterns such that friends and neighbors have expressed concerns?
Had physical problems such as burns or injury marks resulting from general weakness, forgetfulness, or possible misuse of alcohol or prescribed medications?
Decreased or stopped participating in activities that were previously important to them such as bridge or a book club, dining with friends, or attending religious services?
Exhibited forgetfulness resulting in unopened mail, piling newspapers, not filling their prescriptions, or missed appointments?
Mishandled finances such as not paying bills, losing money, paying bills twice or more, or hiding money?
Made unusual purchases such as buying more than one magazine subscription of the same magazine, entered an unusual amount of contests, increased usage of purchasing from television advertisements?
The Eldercare Locator is a public service of the U.S. Department of Health and Human Services’ Administration on Aging
WHAT IS A GUARDIAN?
A guardian is appointed by the court to care for an incapacitated person – called a “ward” and sometimes for the ward’s assets.
HOW IS A PERSON DETERMINED TO BE INCAPACITATED?
Any adult may file with the court a petition to determine another person’s incapacity setting forth the facts upon which they base their belief that the person is incapacitated. The court then appoints a committee of three professionals, including a physician, to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing. This is a different process entirely than a Baker Act.
WHO MAY SERVE AS GUARDIAN?
Any adult resident of Florida can serve as guardian, as can certain institutions. A close relative of the ward who does not live in Florida can also serve as guardian. Persons who have been convicted of a felony or who are so ill they can’t do the job cannot be appointed. If the family is able to agree on who should be the Guardian, the Court rarely rejects that choice.
HOW LONG DOES THE PROCESS TAKE?
An emergency Guardian can be appointed in three to five days. Regular Guardianships take about a month to become finalized.
WHAT DOES A GUARDIAN DO?
A guardian who is given authority over any property of the ward must make a list of the property, invest it prudently, use it for the ward’s support, and account for it by filing annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions, such as the sale of a house, although without a Guardianship, the house couldn’t be sold anyway assuming the ward was incapacitated.
The guardian of the person may decide what medical, mental and personal care services are appropriate and determine the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a plan for the ward’s care. The Guardian’s attorneywill help prepare all these documents.
IS A GUARDIAN ACCOUNTABLE?
Yes. Guardians are usually required to furnish a bond, which our office obtains from an insurance firm specializing in such matters. The Guardian may be required to complete an eight hour court approved training program. The Clerk of the Court reviews all annual reports of guardians of the person and property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.
WILL THE COURT PAPERWORK BE IN THE SAME COUNTY ALL THE TIME?
No, if the ward is moved to another County, usually the Court location would be changed to that County and all the paperwork would be transferred. However, this may not be noticeable to the Guardian since the Guardian may never have to physically go to Court, except in the beginning.
IS THE GUARDIAN LIABLE FOR THE WARDS DEBTS?
No. Unlike the parent-minor child relationship, the Guardian does not have to pay the ward’s debts from the Guardian’s pocket.
CAN THE GUARDIAN BE REIMBURSED FOR COSTS?
Absolutely. The Guardian is also eligible for a fee for going to Court and meeting with the attorney and handling the affairs of the ward. Of course, if the ward has no money, there will be no funds to pay such fees. Some Guardians ask for a fee, some don’t. A fee is taxable income. Reimbursement of costs is not taxable.
IS GUARDIANSHIP PERMANENT?
Not always. If a person recovers from the condition that caused him or her to be incapacitated, the court will have the ward reexamined and can restore some or all of the person’s rights. A Guardian can resign and another family member could handle matters or possibly a professional guardian could be appointed.
These are just some of the most basic issues involved in a guardianship. Call us today to discuss your guardianship matter.