 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
Frequently Asked Questions About GuardianshipGuardianship is a "living probate." A judge appoints a "guardian" to manage the affairs of the "ward." The ward is someone who is a minor or who is mentally or physically incapacitated and therefore unable to manage his or her own affairs. The guardian may be responsible for the ward's property (guardian of the property), person (guardian of the person), or both (plenary guardian). A guardian of the property takes over the ward's assets and manages them for the ward's benefit. The guardian of the property sees that all monies are collected, bills paid, tax returns filed, and so forth. The guardian may buy and sell assets of the ward, if needed. The guardian of the person is responsible for the ward's living arrangements, medical care, and social life. A plenary guardian does all of these things for the ward. Florida's policy is for the ward to retain as much dignity and independence as possible. Nevertheless, it can be very stressful for a person to have their independence stripped from them. A court can take away the ward's right to vote, to marry, to contract, to control his own social life, and just about every other right you can imagine. As one colleague put it, a felon in Florida's prisons may retain more rights than a ward. This is not always true. The rights removed depend on the ward's incapacity and the suggestions of the examining committee. Return To Top Any adult can file a petition with the circuit court asking that a guardian be appointed for someone else. I've seen petitions filed by next door neighbors, children, relatives, and the ward's own attorney. The person filing the petition frequently asks for emergency relief. In such a case, the court will immediately appoint a guardian without notice to the ward. Return To Top WHO DECIDES IF THE PROPOSED WARD IS INCAPACITATED? The court appoints a panel of three (3) people (the examining committee). The examining committee usually includes a doctor or psychologist and others who are familiar with issues of capacity (i.e., competency). They examine the proposed ward to determine whether the ward is incapacitated and, if so, to what degree. They then report these findings to the Judge. A hearing is held at which the ward may present evidence and cross-examine witnesses, including the examining committee. The ward has the right to be represented by an attorney during these proceedings. An attorney will be appointed for the ward unless the ward chooses an attorney of his or her own. After hearing the evidence, the court decides whether the proposed ward needs a guardian and what rights will be removed from the ward. Return To Top The person who files the petition (the petitioner) does, unless that person asks that someone else be the guardian. Sometimes there is no one close to the ward who can serve as guardian, family members are too busy to be the guardian, or the family disagrees over who should be the guardian. The petitioner may have a conflict of interest or may other wise be disqualified from serving. Florida has professional guardians who can be appointed in such cases. These are people who have completed guardianship classes, are bondable, and not otherwise disqualified. They usually get paid on an hourly basis for their work. Return To Top CAN THE WARD PICK THE GUARDIAN? Anyone can select a guardian before they need one by filing a form with the Clerk of the Court. When a petition is filed to have a guardian appointed, the clerk cross checks the petition against these forms to see whether the proposed ward has filed a form selecting a guardian. If so, the court is notified and the person chosen is given preference over anyone else who applies to be the guardian. This can be particularly important if you have family members who do not get along and may fight over a guardianship. A person who is physically but not mentally incapacitated could choose a guardian. A mentally incapacitated person probably would not be able to choose his own guardian. Nevertheless, the court would at least consider the wishes of a mentally incapacitated person who was able to express a preference articulately. Return To Top The only way to completely insure that you never need a guardian appointed is to remain in good health so that you never become incapacitated. There are strategies you can use to reduce the likelihood of ever being a ward and to minimize the expense and trauma of a guardianship. You can: 1. Pick your guardian File the preneed guardianship form mentioned above to make sure you have a say in who your guardian is if you need one. 2. Get along with your family or others close to you Guardianship often arises because the ward is estranged from family, is secretive, or will not let others help. If you maintain a good relationship with your family or others close to you, then they can help you do what you cannot do for yourself and a guardian won't be needed. However, if you hide things from those you love, won't take their help or advice, and are secretive, then chances are they'll have to get a guardian appointed. Only the guardian can make you do things and can act for you when no one else can. Warning for family members of a possibly incapacitated elderly person: Look out for those who arrive on the scene late and seek to help an elderly potentially incapacitated family member. They may seem like a godsend at first. But they may seek to estrange family and long time friends so that they may inherit the relative's assets. Of course, this warning also applies to older people who may become incapacitated, but they rarely recognize what is going on themselves. That's why they are easy targets for this kind of scheme. 3. Have a durable power of attorney A durable power of attorney allows the person to whom it is given (the attorney-in-fact) to buy, sell, and manage assets on your behalf. It is "durable" because it can be used even after the person giving it becomes incapacitated. They are useless after the death of the person who gave it. Powers of attorney can be general or limited. That is, they can allow the attorney-in-fact to do almost anything the principal could do, or they can be limited to certain things. For example, the attorney-in-fact may only be authorized to transfer assets that you own individually to your living trust. Warning: A durable power of attorney can be used while you are still competent. Attorneys-in-fact can, and sometimes do, abuse general powers of attorney by using them to clean out financial accounts and transfer assets. I have even seen children use them to steal from parents (or to beat siblings to mom and dads money). Carefully consider to whom you give a durable power of attorney. I recommend that you have a durable power of attorney, but that you make sure you trust the attorney-in-fact and that you keep the durable power of attorney in a safe deposit box or other safe place. Tell the attorney in fact where it is so it can be retrieved when needed. If you have a living trust, then consider a limited power of attorney that allows only funding of the trust. 4. Have a fully funded, carefully drafted living trust A guardian cannot manage property owned by your living trust. Only the trustee named in your living trust can do that. If all your assets are owned by your trust (i.e., the trust is fully funded), then you will never need a guardian of the property. A carefully drafted living trust will contain detailed instructions about how you want your assets used for your care. It will have instructions on what kinds of things you want provided, where you want to live, and so forth. For example, you can instruct the trustee to provide for home health care instead of a nursing home so long as it is feasible. However, contrary to what some people will tell you, a living trust is NOT a foolproof way to guarantee you will never have a guardian. The trustee can manage your property, but not you. So, if you won't let anyone help you and you are making inappropriate personal decisions, then you will have to have a guardian of the person even though you have a living trust. There is generally no reason why your trustee cannot also be the guardian of the person, unless the trustee has a conflict of interest or is otherwise disqualified. Return To Top WHAT DOES A GUARDIANSHIP COST? This is a like asking how much a house costs or how much a car costs. A lot depends on the house or car in question. Initially, it will cost at least $2,500.00 to $3,500.00 to set up the guardianship, if it is not contested. If the ward and the ward's lawyer (the judge will appoint a lawyer if the ward doesn't have one) decide to fight the guardianship, then it can cost many thousands of dollars. Likewise, the costs can be driven up if competing petitioners or guardians get involved. For example, family members may disagree on who should be guardian and two or more of them may seek to be the guardian. After the guardian is appointed and the initial work is completed, the annual fees may be thousands of dollars a year depending on how much work the guardian must do. Some people's personal affairs are more complicated than others are. Return To Top
|
|||||||||||||||
Home | About
Your Attorneys | Office Information | My Blog | Real Property | Commercial & Business Law
Fee Information | Location | Estate
Planning | Community Involvement | Contact Us | Links
|
The hiring of a lawyer is an important decision that should not be based solely on advertisement. Before you decide, ask Harry T. Hackney to send you free written information about his qualifications and experience. The purpose of this Web site is to provide general information in the fields of law represented. Each situation is unique and the facts will vary with individual circumstances. Information contained on this site is not offered as legal advice, and is based primarily on the law of the State of Florida. |
|
