Many people are unclear about the difference between conservatorship and guardianship. They are easy to confuse because the definitions differ from state to state. For example, news about the conservatorships of Brittany Spears and Amanda Bynes has littered the headlines for the last few years. But both cases occurred in California, which defines conservatorships differently than Florida does.
So what do these terms mean in Florida?
In Florida, a guardian is a person the court appoints to act on behalf of someone else’s person or property or both. That someone else is called a ward and may be an adult or child. This is where Florida differs from other states like California. In California, it’s only called guardianship if the ward is a child—and if the ward is an adult, they are called a conservatee and subject to a conservatorship.
Whatever they are called, when a court appoints someone to make personal, healthcare, and financial decisions for another adult, it generally is because the ward lacks the capacity to make their own decisions. Florida defines an incapacitated person as someone who has been judicially determined as lacking the capacity:
- To manage at least some of their property; or
- To meet some or all of their own essential health and safety needs.
This frequently occurs with age, such as when an older adult develops dementia or Alzheimer’s disease. Mental illness also can lead to incapacity.
Scope of Guardianships
Courts appoint guardians to manage a person’s property or their person.
Managing property includes things like obtaining, administering, and disposing of:
- Real property such as houses and land;
- Tangible personal assets like jewelry, furniture, and cars;
- Intangible property, including financial accounts and stock shares;
- Business assets;
- Insurance and other benefits; and
Allowing someone else to make an adult’s financial decisions for them involves risk to the ward, so courts carefully assess potential guardians and impose strict limitations.
Guardians may further be necessary to manage a person’s individual and health needs, such as providing for:
- Personal hygiene, and
Concerning healthcare decisions, the court will consider any wishes expressed by the individual in a valid advance directive such as a designation of health care surrogate or healthcare power of attorney.
Types of Guardianships
While Florida law defines many types of guardians, the main ones to know about are as follows.
When a child needs someone to care for them, the court will appoint a guardian until they turn 18. This guardian will have plenary authority (versus limited authority), meaning they will make all decisions regarding the minor’s person or property (or both if ordered by the court).
A competent adult who anticipates becoming incapacitated in the future may voluntarily request the appointment of a preneed guardian. Someone recently diagnosed with dementia may do this because they understand their condition will deteriorate.
A nominated preneed guardian can be appointed by a judge once the person is determined to be incapacitated.
Florida courts impose the least restrictive form of guardianship necessary to assist a person incapable of caring for their own needs. So, for instance, the individual might only need help with finances or with making healthcare decisions. In these cases, the court will establish a limited guardianship that only gives the guardian legal power to help with those specific tasks.
If an adult ward requires assistance with all personal and property matters, the court will appoint a plenary guardian. As with all guardianships, the court can limit or terminate these powers if the ward regains some or all of its capacity to manage its own affairs.
In Florida, if a person goes missing, the court will appoint a conservator to manage the absent person’s property. To be considered an “absentee,” the person must be one of the following:
- Reported missing for at least a year while serving with the armed forces, Red Cross, or Merchant Marine at a time when hostilities exist between the United States and another power. The person also may be reported captured or surrounded by the enemy.
- A resident or property owner who disappears as a result of mental illness, amnesia, or probable death.
Under a conservatorship, the conservator can have the same powers as a guardian that oversees a ward’s property.
A few other options exist for situations that don’t warrant guardianship.
Durable Power of Attorney
If you or your loved one only anticipate being incapacitated for a short period of time, like during a medical procedure, then a durable power of attorney might be a good solution. A power of attorney is a legal document that you, as the “principal,” voluntarily sign while you are competent. It gives another person, your “agent,” authority to act on your behalf. You don’t need a court order to create an effective durable power of attorney, but it is a good idea to have a lawyer draft it for you.
As with guardianship, you can make your agent’s authority general or limited. For example, if you only want your agent to make healthcare decisions for you, you can draft a limited power of attorney specifying only those duties. You still need to specifically list the duties you are giving to your agent in a general power of attorney, but you can include a much wider array of responsibilities.
Agents are also considered fiduciaries because of the significant responsibility they have over another adult’s financial decisions and health.
There are two situations where a court might appoint a guardian advocate. The first is for an adult with developmental disabilities who lack the decision-making ability to do some, but not all, of the tasks required to care for themselves.
A court can appoint a guardian advocate even if it has not ruled that the person lacks capacity. However, the court will first examine whether the individual has a durable power of attorney or advance directive for healthcare in place that will sufficiently address the person’s needs.
The second situation that may warrant the appointment of a guardian advocate is when a psychiatrist opines that a patient is incompetent to consent to treatment. In selecting a guardian advocate, the court will give preference to any healthcare surrogate previously chosen by the patient. The appointment lasts only until the patient is discharged or moved to voluntary status.
Consult with an Experienced Lawyer
If you would like to discuss whether you need to pursue a conservatorship vs. a guardianship in Florida, reach out to one of our experienced lawyers today. We treat our clients with dignity and will educate you on the ongoing responsibilities of guardians. We also have experience contesting guardianship appointments. If you or your loved one need compassionate advice, contact Beller & Bustamante, P.L. today.
Our experienced lawyers of the Jacksonville law firm of Beller and Bustamante, P.L. also handle other types of cases, including: