If you are 18 years of age or older and have not been convicted of a felony, the short answer is most likely yes – but – guardianship is the option of last resort for seniors in Florida. Alternatives to guardianship are available that can save time, money, and relationships if the senior person assigns their rights to another person willingly. Once a person is determined to be mentally incapacitated, such as during the guardianship process, these alternatives are no longer available.
The reputation of professional guardians, and guardianship, in general, has come under a bit of a dark cloud in recent years. There is no way around it – guardianship is a challenging process. Whether you chose a professional guardian or petition for guardianship of your parent, the more you understand, the better prepared you will be to act in their best interest.
What is Guardianship?
Guardianship is a legal process that delegates the rights of one person (incapacitated person) to another person (guardian) assigned by the court. That individual (ward) loses their delegable rights after being determined incapacitated in a court proceeding. A guardian is assigned to act in the ward’s best interest and protect them from unnecessary risk of harm.
Types of Guardianship
Full – the guardian will make all decisions on behalf of the ward, including personal medical, and financial decisions.
Limited – the guardian has a limited range of decisions to make on behalf of the ward.
In Florida, you may be able to avoid the guardianship process with a Durable Power of Attorney. There are other less restrictive alternatives if the older adult is willing to sign while they have capacity. Estate planning documents are an effective alternative to guardianship. These documents allow the senior to choose the individuals they want to have authority over their person and/or property.
Alternatives to Guardianship
Living trust
Living will
Healthcare proxy
Pre-need guardian
If your parent is no longer able to sign estate planning documents, your next option is to proceed to court and file a petition to be appointed as the legal guardian. In Florida, a guardian must:
- Be at least 18 years old
- Submit to a full credit background check
- Submit to a full criminal background check
- Attend an 8-hour education course on guardianship
What is the Process to Become a Guardian?
File Petition
Guardianship in Florida is governed by Florida Statute Chapter 744. The process of obtaining guardianship starts with the individual seeking to be appointed as the guardian filing a “Petition to Determine Incapacity.” This document is the request to establish that your parent requires a guardian due to incapacity.
Examining Committee
Once the petition is received, the court appoints an examining committee to meet with the alleged incapacitated person (AIP). The committee usually includes a medical doctor, a psychiatrist, and a psychologist who evaluate the AIP independently and submit their findings to the court. Based on their evaluations, a judge will determine the level of incapacity and what type of guardianship should be entered.
Appointment of Guardian
Once the judge has determined the extent of incapacity and enters an order, you will file a “Petition for Appointment of Guardian.” The judge will decide to approve you or appoint another person if you are not accepted. Once you are appointed, you will begin notifying your parent’s bank, medical, and other providers that you have been appointed as your parent’s legal guardian.
Is Guardianship Expensive?
Guardianship can take its toll financially and emotionally. Emotionally, it is a long process that often puts families at odds with one another and ends with a parent losing their delegable rights. Financially, the expenses can add up, dipping deep into any existing assets to cover the costs of attorneys, filing fees, and – if the guardianship is contested – ongoing fees until the guardianship is completed.
As the individual filing to be the guardian, you must be represented by an attorney. Your parent (the alleged incapacitated person) is also assigned an attorney, or Elisor, to ensure all their rights are being protected throughout the guardianship proceedings. These expenses are paid by the petitioner (you) until you are appointed as guardian.
All the fees and expenses of the guardianship, including the guardian’s lawyers, are paid from the assets of the ward. After being appointed, you, as the guardian, can request reimbursement of expenses from the court. If approved, you can pay yourself back using the ward’s funds. Ultimately, the ward bears the expense of the entire guardianship process.
I’m the Guardian. Now What?
As the guardian, it is your duty first and foremost to make decisions in the best interest of your parent. You have a duty of care that goes beyond being an adult child. Additionally, now your relationship involves the oversight of the courts. There are many potential decisions and responsibilities you will face in this new, court-appointed role.
As the adult child and now guardian of an aging parent, you may find yourself at odds with other family members. You may even question yourself when making decisions on behalf of your parent. Every guardian makes a choice between several alternatives in any situation. Best interest asks “what would a reasonable person do” while substituted judgment asks “what would my parent do if they had capacity?”
Duties of a Guardian
Deciding where the ward will live
Addressing needs and personal care
Hiring in-home care
Preparing a budget and managing finances
Determining medical care and treatment
All who are appointed by the court to be a guardian must attend eight hours of training and instruction by a court-approved organization. The course covers the legal duties and responsibilities of a guardian, the rights of the ward, resources, and the preparation of plans that are required by the court. These plans include habitation plans, annual guardianship reports, and financial accounting.
This class must be completed within four (4) months of being appointed as guardian. It isn’t an exhaustive guide to being your parent’s guardian, by any means. In fact, the most important thing you can learn from this class is that you are not alone and resources are available to help you along the way.
Preparing for Guardianship
If you have aging parents, you need a reputable Elder Law Attorney on speed dial. From estate planning to public benefits to support through guardianship proceedings, your local elder lawyer is an invaluable resource. These legal gladiators know the common pitfalls that accompany aging and are well-versed on the ways to positively move forward.
If you have questions about your estate plan or are concerned about an aging parent who hasn’t designated any decision-makers, make an appointment with an Elder Law Attorney. Peace of mind for the whole family can be as easy as one conversation with your attorney. Sometimes you can’t avoid the financial and emotional expense of a guardianship proceeding, but you can have a team of experts to support and guide you through the experience.
Unwavering commitment to seniors and knowledgeable guidance for families are two reasons why Elder Law Attorneys are a Resource We Love. Read more about how these legal minds are protecting the aging population in the Legal and Financial Section of our Blog.