What are guardianships?
Guardianships can be established through the courts for adults (over 18) and minors who do not have the mental capacity to manage their own affairs. Generally, guardianships are of several types:
- Limited guardianship - oversees certain aspects of care for the subject of the guardianship, called the ward.
- Plenary (Full) guardianship - all rights of care over the ward are managed by the guardian.
- Guardianship of person - oversees the ward’s personal care, health and choice of residence.
- Guardianship of property - manages the ward’s income, assets, bills and finances.
Areas Overseen by the Guardian
Depending on the type of guardianship, the Guardian would make decisions for the ward regarding the following areas:
- Medical Treatment
- Confidential Information
- End-of-life Decisions
- Benefits Application
- Estate Income
- Benefits Representative Payee
- Property/Asset protection
- Independence/Restrictions
- Residence
- Disbursements
- Property Appraisal
- Education/Counseling
Guardianship Hearings
The first step in obtaining guardianship requires filing a petition to request determination of an individual’s incapacity. The court assigns an examining committee to evaluate whether an individual’s incapacity is sufficient to warrant a guardianship. One committee member must be a psychiatrist or other physician and the others must be either a psychologist, gerontologist, another psychiatrist or physician, registered nurse, nurse practitioner, licensed social worker, etc. If the examining committee decides the individual is not incapacitated, the court will dismiss the petition. If the person is found to be incapacitated, the court will decide on the type of guardianship appropriate to the person’s needs. At the end of the hearing, the court customarily appoints a guardian. Usually the guardian is a relative, close friend or caretaker; however, if none exist who are willing to be the guardian, the court will appoint a professional guardian or public guardian to act as guardian.
If at some point the ward’s condition improves, the court may re-examine to re-evaluate whether a guardianship is still warranted or whether a full guardianship should be reduced to a limited guardianship or none at all.
Guardianship Alternatives
Through proper elder care planning, guardianships can usually be avoided. At Steven K. Schwartz, P.A., we assist clients with Advance Directives as alternatives to guardianships. However, if a person becomes incapacitated and did not previously appoint an agent under a durable power of attorney, a guardianship is usually necessary to manage affairs. Because guardianships are costly, intrusive and possibly embarrassing for the ward, who has to face examination based on allegations of incapacity, guardianships should only be used when absolutely necessary and after exhausting other possible alternatives, such as the following:
- Durable Power of Attorney
- Healthcare Surrogacy
- Living Wills
- Community Services
- Joint Tenancy
- Living Trusts
- Care Management
Guardian Accountability
Florida laws are designed to protect the interests of the ward. Consequently, the guardian is held accountable to the local court. The guardian is responsible for yearly reports that show accounting of financial activity and that report on the condition of the ward. The guardian must adhere closely to Florida laws governing guardianships.
Arrange a Consultation
We encourage you to arrange a consultation with our wills and probate lawyer, Steven K. Schwartz. He will review and discuss your particular situation to help you decide whether a guardianship would be of benefit. Please email or contact our office at (305) 936-8844 to arrange a consultation.
