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What You Need To Know About Guardianship

Whether through illness, injury, or other means, anyone can require a guardian to become appointed if they become mentally incapacitated. In such cases, if there is no estate planning in place (or insufficient planning) to keep family or other loved one’s out of court, a guardianship, or conservatorship as it is sometimes called, must be established via a court process in the county probate court.

Obtaining guardianship can be an extraordinarily challenging and expensive process. It begins with filing a petition in court for guardianship and requesting the court declare the incapacitated person incompetent. In some cases, these types of filings are made “ex parte”, or in secret, and a guardianship can be established before family or close friends even know what’s happening. In other cases, such a filing can result in a heated dispute between family members and/or friends, who may claim they’d be better suited for the role. Given this, things can get quite costly very quickly.

Of course, this assumes these matters haven’t already been decided through proper and up-to-date estate planning, including a valid durable power of attorney and advance health care directives, which are the best methods for ensuring this massive responsibility is handled as effectively as possible. Sadly, most people don’t think of the costly possibility of incapacity and therefore leave their families at risk.

If you do have a loved one who needs a guardian, here are some of the things you’ll need to know:

Who can be appointed as guardian?
Unless specified in a valid legal document, any family member or other interested person can petition for guardianship—even a close friend can do it if they prove they’re best suited for the position. That said, most courts give preference to the ward’s spouse or other close family members. In some cases, the guardian is required to post a bond, which typically requires good credit and some level of deposit to be held in the event of the guardian’s wrongdoing. This bond requirement often disqualifies friends and family, who either don’t have good credit or the resources to post a bond.

If a relative or friend is not willing—or capable—of serving, the court will appoint a professional guardian or public guardian. This is one of the ways that an estate can be drained extremely quickly. If you want to hear more about how this can happen, read this terrifying article about the way public and professional guardians are stealing from our elders.

When are guardians appointed?
A guardian will only be appointed if a court determines there is enough evidence to show a person is mentally incapacitated, such that they can no longer make legal, financial, and/or health-care decisions.

What are a guardian’s responsibilities?
Depending on the extent of the ward’s mental capacity, a court-appointed guardian can be given near complete control over a person’s life and finances. Some of the most common duties include:

  • Paying the ward’s bills
  • Determining where they live
  • Monitoring their residence and living conditions
  • Providing consent for medical treatments
  • Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated
  • Managing real estate and other tangible personal property
  • Keeping detailed records of all their expenditures and other financial transactions
  • Making end-of-life and other palliative-care decisions
  • Reporting to the court about the ward’s status at least annually

The extent of duties the guardian is responsible for is up to the court, and the guardian will not be allowed to act in areas the court has not authorized. Moreover, guardians are required to seek the ward’s preferences whenever possible—though ultimately, the decision about what action to take will be in the guardian’s hands.

The court can also divide out responsibilities to multiple parties. For example, one person may oversee the financial decisions, while another handles living arrangements and health-care decisions. What’s more, the court often requires detailed status reports, such as financial accounting, at regular intervals or whenever important decisions are made, such as the sale of assets.

Are guardians paid?
Yes, guardians are entitled to reasonable compensation for their services based on the ward’s financial ability to pay. The appointed guardian is paid directly from the ward’s estate. In most cases, the compensation must be approved by the court ahead of time, and the guardian must carefully account for all of their services, the time spent on tasks on behalf of the ward, and any associated out-of-pocket expenses.

Given the huge level of responsibility and loss of control that comes with guardianship, the best course of action would be to get proper and updated estate planning in place ahead of time to ensure that if you or anyone you love becomes incapacitated, you can stay out of the court process altogether if possible.

Contact our firm to schedule a Planning Session—first for yourself—and then for the people you love before something happens to make it too late to plan. If it’s already too late and you’re reading this article because you need help petitioning a court for guardianship, contact us now to mitigate the risks, hassles, and expense.

This article is a service of attorney Myrna Serrano Setty. Myrna doesn’t just draft documents, she helps you make informed and empowered decisions about life and death, for yourself and your loved ones. That’s why Myrna offers a Planning Session during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Planning Session and mention this article to find out how to get this $500 session at no charge.

Incapacity Planning: What if you’re alive, but can’t manage your own finances or healthcare?

Let’s talk about Incapacity.

 

Having a solid estate plan is about more than just what happens to your stuff after you pass away. A solid estate plan includes strategies to manage your affairs if you become incapacitated during your life and can’t make decisions for yourself. Learn about why you need an incapacity plan and how you can empower your loved ones to make financial and healthcare decisions for you – and saving everyone time, money and unnecessary drama.

What happens without an incapacity plan?


Without a comprehensive incapacity plan, your family will need to go to court and ask a judge, who doesn’t know you or your family, to appoint a guardian or conservator to take control of your assets and healthcare decisions. Once appointed, this guardian or conservator will make all personal and medical decisions on your behalf and will continue to be court-supervised until you regain capacity or pass away. Until you regain capacity or die, you and your loved ones could face an expensive and time-consuming guardianship or conservatorship process. This gets worse if your loved ones can’t agree on who should take charge or on what decisions to make.

Finances during incapacity


If you are incapacitated, you are legally unable to make financial, investment, or tax decisions for yourself. Who is going to be able to pay your bills, manage investments, run your business or file tax returns?

Healthcare during incapacity


If you become legally incapacitated, you won’t be able to make healthcare decisions for yourself. Because of patient privacy laws, your loved ones may even be denied access to medical information during a crisis and end up in court fighting over what medical treatment you should, or should not, receive. Do you remember the Terry Schiavo case? Her family was involved in a 15-year legal battle over her guardianship, healthcare and end-of-life issues!

These are 5 essential tools you can put in place before you become incapacitated:

  1. Durable Power of Attorney:

This legal document gives your agent the authority over your finances and property, such as paying bills, filing tax returns, selling real               estate, dealing with insurance and other financial matters that are described in the document. In Florida, the durable power of attorney           goes into effect as soon as it is signed. This is a powerful document and if it is in the wrong hands, it could be misused. You should seek           the advice of an attorney on the proper use and scope of this document.

  1. Living Will and Appointment of Healthcare Surrogate:

    This legal document shares your wishes regarding end of life care if you become incapacitated. It also allows gives your agent the authority to make healthcare decisions if you become incapacitated.

  2. HIPAA authorization:

    This legal document gives your doctor authority to disclose medical information to an agent selected by you. This is important because health privacy laws may make it very difficult for your agents or family to learn about your condition without this release.

  3. Designation Naming Pre-Need Guardian:

    This legal document allows you to name someone in advance to act as your Florida Guardian if you become incapacitated and if a judge decides that you need a guardianship. The document also allows you to say who you do not want to be your guardian.

  4. Revocable Living Trust:

    This legal document has three parties to it: the person who creates the trust (you might see this written as “trustmaker,” “grantor,” or “settlor” — they all mean the same thing); the person who legally owns and manages the assets transferred into the trust (the “trustee”); and the person who benefits from the assets transferred into the trust (the “beneficiary”). Typically, you will be the trustmaker, the trustee, and the beneficiary of your own revocable living trust. But if you ever become incapacitated, your designated successor trustee will step in to manage the trust assets for your benefit. Since the trust controls how your property is used, you can specify how your assets are to be used if you become incapacitated (for example, you can authorize the trustee to continue to make gifts or pay tuition for your grandchildren).

Is your incapacity plan up to date?


Once you get all of these legal documents for your incapacity plan in place, don’t just stick them in a drawer and forget about them. (In fact, many banks prefer that you update your power of attorney every three to five of years, to keep the document from going “stale.”) You need to review and update your incapacity plan periodically and when certain life events occur, like moving to a new state or losing a spouse. If you keep your incapacity plan up to date and make the documents available to your trusted helpers, you can save time, money and unnecessary drama. Do you want to learn more about how attorney Myrna Serrano Setty can help you protect yourself and your loved ones? Contact her law firm today at (813) 514-2946.