A guardian is a person, or entity in some cases, appointed by the Court to act on behalf of a minor child, or an adult with a mental or physical impairment that prohibits them from making reasonable decisions or performing normal daily living activities without assistance. The guardian becomes the decision-maker for the child or disabled adult, known as the ward once an adjudication of incapacity is made by the Court. The Guardian is responsible for making all decisions which the Court determines the ward is incapable of making on their own. The decisions made by the guardian must always be in the ward’s best interests.
Florida Law allows a guardian to be appointed on behalf of a minor child in situations such as the simultaneous death of the parents, the parents are incapable of raising the child, or if the child is entitled to an inheritance or settlement from a lawsuit greater than the amount allowed by the State of Florida for parents to receive on behalf of their child.
Guardianships for disabled adults occur after the Court finds that the adult is incapacitated, and as a result their decision-making abilities are impaired. After a finding of incapacity, the Court has the ability to appoint someone to make personal health and financial decisions for the ward.
However, before appointing a guardian, the Court must first determine there are no less restrictive alternatives to guardianship for protecting the ward. Less restrictive alternatives may include Durable Powers of Attorney, HealthCare Surrogate Designations, Living Trusts, or other advanced-directive forms. The goal is to provide the least restrictive means of protecting the ward so as to avoid court intrusion into their lives and allow them to maintain some sense of dignity. These less restrictive alternatives must provide for a plan of care which is in the ward’s best interest.
Guardianships can often be avoided through formal estate planning. Consulting with a professional estate planner will provide you with the various options available. If a guardian must be appointed, having designated a pre-need guardian in an advance directive allows you to have some control over who ultimately will be making decisions regarding your health and finances. If you have not formally designated a pre-need guardian prior to being determined incapacitated, then the Court can choose, on its own, who it feels is best suited to make decisions for you.
In addition to being an intrusion into the ward’s most private and personal matters, guardianships can be quite cumbersome for the family member, friend or court-appointed guardian, who faces numerous ethical and legal duties as set forth in the Florida Statutes and Florida Probate Rules. Guardianship proceedings can become quite costly and a significant financial burden over time as the Court must continually monitor the health and finances of the ward through annual reports and accountings. The guardian’s responsibilities can be quite extensive and hiring legal and financial professionals is almost always necessary.
With all that said, guardianships do in fact provide an important last line of defense to protect those who can no longer protect themselves. Unfortunately, people who become incapacitated tend to rely on others to care for them, which also makes them vulnerable to exploitation by unscrupulous family members, caretakers, or other predatory individuals. If appropriate estate planning hasn’t been done in advance, then guardianship proceedings can be initiated to take control and provide the medical and financial protection that an incapacitated person can no longer provide for himself.
If you have questions about a Florida guardianship matter or would like to discuss how to avoid formal guardianship proceedings through lesser restrictive alternatives please contact the Law Offices of Christopher P. Taylor, PA, or ask Mr. Taylor a Florida Guardianship question online today.