Guardianship, also referred to as conservatorship, is the legal process used by the courts when a person can no longer make decisions on their own behalf. The guardianship process is necessary for many situations. However, because having a guardian appointed significantly impacts a person’s rights, courts impose a high bar before appointing one. Thus, seeking an appointment as a guardian can be a lengthy, time-consuming, and costly process. However, with a little planning, families can avoid the need to pursue a guardianship petition.
What Is the Florida Guardianship Process?
In Florida, parties can seek guardianship in a few circumstances. Most commonly, someone seeking guardianship does so on behalf of a friend or family member who is experiencing significant mental or physical disabilities to the point where they cannot make important life decisions independently. However, guardianship also refers to the process by which an adult is appointed as the guardian of a minor child. These two very different situations raise unique concerns, and this post focuses on the guardianship of an incapacitated adult.
When Is Guardianship Appropriate?
When someone, due to disability or incapacity, cannot make important life decisions on their own, those close to them may petition the court to become that person’s guardian. However, a court will not appoint a guardian unless it is the least restrictive alternative. Thus, the court will conduct a comprehensive hearing evaluating the allegedly incapacitated person to ensure that guardianship is appropriate.
What Types of Guardianships Are Available?
Florida allows for both voluntary and involuntary guardianships. A voluntary guardianship is available when the person, although mentally competent, cannot manage their estate on their own. In that case, the person may ask someone to act as their guardian, at least with respect to specific tasks such as handling their finances.
Most guardianship petitions, however, involve involuntary guardianship. Involuntary guardianships arise when the subject of the guardianship petition or a third party objects. The process of appointing an involuntary guardian is complex and often involves litigation. However, there are alternatives to the guardianship process.
Florida Guardianship Alternatives
The guardianship process can be arduous. To avoid this, families can plan in advance to avoid the need for a Florida guardianship petition. However, depending on a family’s specific needs, each of these alternatives has both advantages and disadvantages, and they may not avoid guardianship unless certain conditions are met.
A few of the Florida guardianship alternatives include the following.
Joint Bank Accounts
Opening a joint bank account with a loved one enables the joint signer to access the funds as they would their own. Once another person is added to a bank account, either signer can deposit or withdraw from the account. This arrangement is very easy, as it entails only traveling to the bank to add an additional signer. However, for many families, merely accessing a loved one’s funds is insufficient. Thus, opening a joint bank account, or adding a signer to an existing account is a step in the right direction but rarely eliminates the need for guardianship. Additionally, a joint bank account will not be considered as a less restrictive means to guardianship unless the joint signer was active in helping the incapacitated person manage their finances.
Durable Power of Attorney
A power of attorney is a legal document that gives another the authority to make decisions on the signer’s behalf. A validly executed power of attorney can be limited in scope or may provide the agent with broad decision-making powers, depending on the phrasing of the document.
Powers of attorney can be general or durable. General powers of attorney last until the grantor dies becomes incapacitated or revokes the agent’s authority. However, durable powers of attorney survive the grantor’s incapacitation, making them a useful tool to avoid guardianship. However, the court will make the ultimate decision if a durable power of attorney is the least restrictive alternative to guardianship. For example, a durable power of attorney that provides only limited powers may be insufficient to address all the allegedly incapacitated person’s needs.
A living trust is another type of legal document that gives a person the right to make decisions on another’s behalf. Like a power of attorney, a living trust can bestow broad decision-making powers or delegate only certain decisions. However, unlike a power of attorney, a living trust is limited to decisions regarding financial matters. Another limitation to living trusts is that the trustee has control only over assets properly titled in the name of the trust. No power is given over personal assets belonging to the allegedly incapacitated person.
Living trusts are almost always considered the least restrictive alternative to the guardianship of an allegedly incapacitated person’s property. However, because living trusts do not provide any authority to make medical decisions, it may be necessary to appoint a guardian to oversee the person’s healthcare decisions.
Health Care Surrogate
A health care surrogate is a written document naming a person to make medical decisions on behalf of another once the grantor becomes incapacitated. A person named as a health care surrogate can apply for government benefits on behalf of the grantor but cannot make any financial decisions on their behalf. Additionally, a physician must determine the grantor is incapacitated before the healthcare surrogate will become valid. A health care surrogate is the medical complement to a living trust, and these two documents are frequently used together to avoid guardianship.
Contact a Knowledgeable Florida Guardianship and Estate Planning Lawyers Today
If you have questions about the Florida guardianship alternatives, contact one of the dedicated estate planning lawyers at Beller & Bustamante, P.L. At our Jacksonville law office, we help families with their complex estate planning needs and have done so for more than 30 years. We are widely recognized in the community as skilled problem solvers who work closely with our clients to develop effective and creative solutions tailored to their individual needs. Regardless of the complexity of the estate planning issues your family is confronting, our lawyers can help. To learn more and to discuss your situation with one of our Florida guardianship lawyers today, give us a call, or you can reach us through our online form.