A guardian is typically a family member, friend, or fiduciary appointed by the court.
Among retirees in Florida, there are a significant number who gradually lose the capacity to manage finances, make decisions, or act in a timely manner to safeguard their own health and welfare.
This naturally causes concern for the seniors and their relatives who are not in a position to assume that responsibility. In Florida, the court is empowered to appoint guardians for adults who are unable to manage their affairs for their own benefit.
Guardianship is a process by which a person or entity assumes authority over another person who is designated the ward. Florida law recognizes two main categories of guardianship:
Guardianship of the person
Guardianship of the estate or property
For some members of our society, legal protection may be necessary even after they have entered adulthood.
These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or a psychological disorder, or have some other condition that prevents them from caring for themselves.
In these cases, a guardianship may be established.
Guardianship of the Person
This type of guardian makes decisions for and acts to promote the ward’s health and welfare. Guardianship of the person often relegates the following responsibilities to the appointed guardian:
Determining and maintaining residence
Providing informed consent to and supervising medical treatment
Consenting to and supervising non-medical services such as education, psychiatric, or behavioral counseling
Making end-of-life decisions
Paying debts and other expenses
Maintaining the protected person’s autonomy as much as possible
The guardian may be required to report to the court about his or her activities on an annual basis.
Guardians and Protected Persons
Guardianship, also referred to as conservatorship, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a guardian, or custodian.
A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property.
Additionally, a person may be placed under guardianship who is prone to fraud or undue external influence.
While guardianship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
Providing informed consent to medical treatment
Making end-of-life decisions
Making property transactions
Obtaining a driver’s license
Owning, possessing, or carrying a firearm or other weapon
Contracting of filing lawsuits
Right to Due Process
To safeguard the protected person’s right to due process, he or she may be entitled to notice of, and ability to attend all legal proceedings related to guardianship.
In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.
Guardianship of the Estate or Property
This type of guardian manages the finances of the ward, acting as a fiduciary to maximize the assets for the ward’s benefit. Guardianship of the estate or property transfers the following responsibilities to the guardian:
Organizing, gathering and protecting assets
Arranging appraisals of property
Safeguarding property and assets from loss, whenever possible
Managing income from assets
Making appropriate payments
Obtaining court approval prior to any sale of major assets
Reporting to the court the estate’s status on a regular basis
Many guardianships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.
Getting a Guardian Appointed for Your Senior Loved One
Daniel J. Endrizal III, PA is dedicated to providing services that enhance the lives of our senior clients. For many seniors, who value their autonomy, broaching the question of guardianship can be a delicate matter.
Many welcome the assistance because it gives them added security, which actually enhances their freedom. Others resist an appointment, even when their incapacity is readily apparent.
The legal process in Florida allows for voluntary appointment as well as a court-ordered appointment that overrides the senior’s objection.
A court order requires a hearing, and you should seek advice from a capable and experienced elder law attorney.
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Daniel J. Endrizal III, PA has been practicing law since 2000. We'll help you prepare and plan for the future with comfort and convenience.
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