A legal guardian is a person lawfully invested with the power, and charged with the obligation, of taking care of and managing the property and rights of a person who, because of age, understanding, or self-control, is considered incapable of administering his or her own affairs. If someone is not incapacitated but nonetheless does not have the  have the ability to handle his or her affairs your loved one may enter a voluntary guardianship. Guardians are paid by the assets of the ward on an hourly basis. In most counties, fees are approved by a judge. No gifts may be made to the guardian. Even if your loved one wants to bequeath his or her estate to a guardian, this is not legal under Florida Law.

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It’s important to understand that there is a difference between Power of Attorney and a Court Appointed Guardian. Most people think of a Power of Attorney (POA) when it comes to handling one’s affairs. This may seem like a useful tool and safe choice. The main deficiency of the POA is that it is not a monitored practice. POAs are not required to be registered, bonded, fingerprinted or monitored. They do not file accountings or have to show their financial standing to the court. This can be a recipe for disaster when someone facing financial difficulty has full authority over the finances of another. On the other hand, guardianship is a court monitored practice. Florida statutes state that a professional guardian must be represented by an attorney.

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It is important for you and your loved ones to explore options and plan for the possibility of incapacitation while you are still capable of making decisions and stating your wishes regarding who will manage their affairs and how this will be carried out. This is done by consulting an elder care attorney to address legal, financial, and care options. If an individual is unable to handle their affairs and there is not a POA, Guardianship is the only option available. The older adult becomes a ward of the state.

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At times, guardianship can be an adversarial proceeding if disputes between family members arise. Older adults will need to attend court hearings and will be represented by an attorney. These costs are deducted from the ward’s assets as dictated by the judge. This process can be emotionally and financially draining for the ward.  A guardian is a last choice for a professional or family member to coordinate care and assume total responsibility for an individual’s life when they are unable to make decisions as decided by a judge.

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A guardian arranges all services an incapacitated person requires. All finances are managed by the guardian and all funds must be accounted for through strict legal requirements. A guardian is responsible for advocating for a senior or younger incapacitated individual to insure their rights are maintained and/or restored including those guaranteed to seniors residing in skilled nursing facilities or assisted living facility.

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Types of Guardianship Include:

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• Plenary guardianship – If an individual is incapable of carrying out all tasks of caring for themselves or property, the court will grant the Guardian the authority to implement all delegable legal rights and powers of the Ward.

• Limited Guardianship – In some cases, the incapacitated person lacks some but not all capacity needed to care for his or per person and property. The Court will appoint a guardian to carry out those legal rights and powers needed to protect the Ward. The Limited Guardianship is established to encourage the most independence possible and is the least restrictive alternative to a Plenary Guardianship.

• Voluntary Guardianship – Under Florida law, a person who is mentally competent but who, by reason of age or physical infirmity, needs assistance in managing some or all of his or her property, may petition the Court to establish a Voluntary Guardianship of the property. The petition must be accompanied by a certificate from a physician that he or she has examined the person and the person is competent to understand the nature of the Guardianship and the delegation of authority to another.

 

Characteristics of a good guardian include:

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• Trustworthy – The guardian must have a bond in place to cover the assets of the ward. The court monitor, the State, the local Clerk of Courts and the guardian’s attorney all serve as safeguards to protect your loved one. Professional Guardians are finger-printed and background checked to ensure your loved one’s safety.

• Caring – It is important that the guardian chosen is someone who is caring and compassionate. This is a very personal relationship in which everything is shared; much like a marriage or a parental role.

• Respectful – The wishes of the ward prior to their incapacity are taken into consideration and given great weight. Religious preferences, likes and dislikes are all taken into consideration. Guidelines have been set in place by the National Guardianship Association to ensure that a standard of practice is used that guarantees the autonomy and best interest of the ward are respected.

• Organized – This is a detail oriented field. Information is a crucial part of safety. Knowing how to integrate technology and tap into records is vital. A call can come in any time from a local emergency room that a ward has recently been admitted. The guardian must be able to supply that hospital with Dr.’s information, lists of medication, insurances, medical history, etc.

• Resourceful – A guardian must be aware of local resources such as home health care, skilled nursing, assisted living and hospice. A guardian must be knowledgeable about attorneys, transportation options and social services in the community.

• Resilient – Often guardians are met with friction. It is important to have a guardian in place who is tough and professional. A make-it-happen attitude is essential when you are dealing with the affairs of a ward. Every organization, from banks, the Social Security Administration, Medicaid, Medicare, insurance companies and others, require a tenacious person who can stay on task and accomplish tasks on behalf of the ward.

• Assertive – Guardianship deals with a vulnerable population that is often exploited. Sometimes, the staff in a facility is not meeting the needs of the ward. Guardianship covers the person and his property. When an individual has been hospitalized, it is important that his home is secured and that their neighbors and family are not exploiting the situation. A court-stamped order goes a long way in convincing others that their actions may not be advisable.