I have been handling guardianship cases since I began practicing estate planning law.  Since 2006, I have participated in numerous guardianship cases and represented every different type of party who can be involved in guardianship matters.  While most guardianships are uncontested and undertaken by family and/or friends for the benefit of a loved one, some cases can be contested and turn into complex litigation matters.  Working with Marshall Law will put a lawyer and firm on your side who understands the intricacies of guardianships and what needs to be done to garner the outcome that best serves the person in need.

Guardianship is the judicial process of appointing one or more people to handle the health and/or financial needs of a person determined to be mentally incapacitated (this person is referred to as the “alleged incapacitated person” before a guardianship is granted, and the “Ward” after guardianship is granted).  Sounds simple enough, but the process is quite involved as the results of a guardianship can result in one or more personal rights of the Ward being removed and given to a Guardian to exercise.  The rights subject to review and possible removal include, but are not limited to, the right to marry, vote, contract, manage or dispose of property, have a driver’s license, determine residence, consent to medical treatment, or make decisions affecting social environment.

Throughout the entire process both the party seeking guardianship as well as the person alleged to be incapacitated must be represented by an attorney; the attorney for the alleged incapacitated person is an experienced guardianship attorney appointed by the court, and their sole duty is to represent the interests of the incapacitated person throughout the entire guardianship case.

Just because a Guardian is authorized to act on a Ward’s behalf does not mean the Guardian can act without oversight for two reasons.  First, some of the rights removed from the Ward may not be exercised by the Guardian without prior court authorization.  Second, the Guardian is required to file annual reports regarding the Ward’s rights the Guardian has been authorized to exercise, and each report must be reviewed by the attorney assigned to represent the Ward and approved by the judge assigned to the case.  These annual reports can be quite complex, so having an attorney who understands these reports and knows how to compile them is key to ensuring the guardianship is handled professionally.

Guardian of the Person: When a person is unable to make decisions regarding their personal safety and well-being, and if they have no valid Advanced Health Care Directives (HIPAA Waiver, Designation of Health Care Surrogate and Living Will), or if they have such documents but the person(s) named in the documents are unavailable or incapable of acting appropriately, then a Guardian of the Person will be appointed to make the Ward’s decisions regarding the exercise of their personal rights.  The court will consider the extent of the Ward’s mental faculties using reports prepared by court-appointed medical and mental health professionals (referred to as the “Examining Committee).  Based upon the finding of the Examining Committee, the Court will determine what rights to remove and grant to the Guardian.  For example, a Ward could lose the ability to determine their residency but retain the right to vote.  This is all sorted out through discussions with the doctors assigned to evaluate the Ward, the Ward, the Ward’s attorney and the assigned Judge.

Guardian of the Property:  When a person is unable to handle their finances, and if they do not have a valid Durable Power of Attorney, or the person(s) named in the Durable Power of Attorney are unavailable or incapable of acting appropriately, then a Guardian of the Property will be appointed to marshal the Ward’s assets and use them to pay for the Ward’s care.  In some circumstances the Ward could have dependents reliant upon them for care, so the Guardian of the Property must also take into consideration their needs.  After appointment as Guardian of the Property, the Guardian must file with the court an Initial Inventory of the Ward’s assets.  Each calendar year thereafter, the Guardian will file an accounting of all income and expenses that occurred in the prior year.  The Guardian is required to retain all receipts and other financial records to support the transactions disclosed in the annual accounting; these records must be retained until 7 years after the guardianship is terminated (which occurs either upon the death of the Ward or they are judicially determined to have regained competence).

Guardian Advocate:  Parents must come to grips that when their children turn 18 they are considered adults with all the rights and responsibilities that come with such.  This means parental rights – the right to determine a child’s residency, control their assets, manage their health care, etc. – are terminated.  Parents of children who are mentally challenged, either because of issues occurring at birth or incidents that occur in later years before reaching adulthood, also lose parental rights when their child turns 18 even though their now child is incapable of handling some or all their personal needs.  When a mentally challenged child’s incapacity is well documented prior to reaching adulthood, parent(s) or other family members can petition to be appointed the Guardian Advocate of their adult child.  The appointment of a Guardian Advocate is not as complex as a normal guardianship because the use of an Examining Committee is not required, although medical records and/or a report from the child’s attending physician will be required.  Just as in a Guardianship, the court will assess the mentally challenged child’s incapacity and what rights to delegate to the Guardian Advocate; this can include health care decisions and/or financial management of the adult child’s assets.  The Guardian Advocate is required to file annual reports as is done in a regular guardianship.

Guardian of Minor:  The natural (or adopted) parents of a minor are considered the child’s guardian for all purposes.  If, however, one or more of the parent(s) of the minor child are not available, a parent, brother, sister or “next of kin” can petition to be appointed the minor child’s guardian for purposes of handling their health and financial decisions.  This type of guardianship automatically terminates upon the minor child turning 18 years of age.

Claims of Minors:  If a minor child is to receive a distribution from a settlement or an estate, and the amount of money to be received is equal to or greater than $50,000, then the parent(s) or a “next of kin” must petition the court for appointment as the child’s Guardian Ad Litem.  In addition, if the court is overseeing a settlement in excess of $15,000 and believes measures should be taken to protect the interest of a minor child, the court can require a Guardian Ad Litem be appointed.  The appointed Guardian Ad Litem will be authorized to settle the minor’s claim or receive an estate distribution, which the Guardian Ad Litem must hold and manage for the minor child until they turn 18 years of age.  Just as with a Guardian of the Property, annual reports are filed with the court unless the court directs the settlement proceeds be held in a designated account that cannot be touched without court approval.

Foreign Guardians:  If a Ward subject to a guardianship in another state is moved to Florida, the Guardian can petition the court to effectively “transfer” the guardianship to Florida subject to the Circuit Court for the county to which the Ward has been moved.  These situations often occur when a Florida resident is the Guardian for an out-of-state Ward, and it becomes necessary to move the Ward to Florida to be closer to the Guardian.  It is not necessary to start the guardianship over from scratch as the courts in Florida will give “full faith and credit” to the guardianship established in the originating state, but the Florida court will require full compliance with all record keeping and other regulations imposed on Guardians under Florida law.

Non-Resident Wards:  If a non-resident Ward owns property in Florida, either a Florida resident or a non-resident Guardian may petition the court for authorization to manage the Ward’s property in Florida.  This is typically required when the Ward owns real property in Florida (e.g. vacation home, orange grove, farm land, etc.) as only Florida’s courts have jurisdiction over such assets.  The appointment of a Guardian for non-resident Wards is similar to the appointment procedures for the appointment of a Foreign Guardian, with the same record keeping and other reporting requirements required when managing property of a Ward.

Guardianships can be costly in terms of both time and money.  The process can be frustrating for everyone involved, especially the person subject to the guardianship as they may no longer have the mental capacity to understand what a guardianship is and why it is necessary.  Adding to the difficulty of a guardianship is putting the decision as to who will be your guardian in the hands of a Judge you do not know and who is not bound to consider anything beyond what is in your best interest – even if that means appointing a guardian other than someone you would choose on your own.

The most effective method of avoiding a guardianship is through estate planning measures that include, but are not limited to, the use of a Revocable Living Trust, Durable Power of Attorney, and/or Advanced Health Care Directives.  The law clearly permits your Trustee, Agent and/or Health Care Surrogate to act without court approval and oversight unless it can be demonstrated such are not acting in your best interest.  At Marshall Law, we consider and discuss guardianship-related issues when designing every client’s personal estate planning needs as the odds of suffering from a disability before death is rising each year due to better health care and healthier lifestyles.  We want to put you in charge of making decisions regarding who will manage your future care.