Do you have a loved one who has become recently incapacitated? Are you concerned that someone you care about lacks the mental or physical abilities to take care of themselves? While Florida guardianship statutes offer many options to ensure the people important to you are adequately cared for, the judicial system can be complex and intimidating. The experienced attorneys of Beller & Bustamante, P.L., can provide you with prompt, insightful legal counsel to assist you in navigating the guardianship process.

Per Florida law, an individual may be placed under the care and control of another who functions as their legal “guardian” if specific criteria are properly established. The majority of guardianship-related litigation takes place in the early phases of creating and imposing the guardianship arrangement when an allegedly incapacitated person or a third party chooses to contest the decision. From a legal standpoint, one of the most important nuances of Florida guardianship law is the requirement that there can be no “least restrictive” available alternative to the guardianship before the court could appoint one.

The main advantage of this mandate is that the court may consider additional factors other than whether or not the allegedly incapacitated party is indeed incapacitated in order to make the ultimate decision as to whether appointing a guardian is the appropriate solution. Florida Statute §744.331(6)(b) requires that the court must consider testimony and other evidence that suggests there may be potentially less restrictive means as viable alternatives to outright guardianship, and if they will adequately meet the ward’s needs. If the court determines that there is a least restrictive alternative, the court is not permitted to delegate the incapacitated person’s rights to a guardian for those issues covered by the least restrictive alternative.

Three Types of Least Restrictive Alternatives to Guardianship

The following is a brief overview of three of the most common least restrictive alternatives to guardianship that arise in litigation. This is far from an exhaustive list, but it offers a glimpse into the potential complexity of these situations and underscores the importance of retaining trusted and responsive legal counsel like you will find at Beller & Bustamante to protect your rights at every stage of the process.

  1. Joint Bank Accounts

It is common for individuals to have their bank accounts and additional financial investments legally titled jointly with another person or persons. This type of arrangement means that the financial entity will accept the signature of either of the parties named on the joint account, permitting either individual to sign checks and make withdrawals. Additionally, assets that are jointly owned may automatically pass to the survivor in the event the other joint owner dies. Many elderly individuals set up joint bank accounts as “convenience” accounts by adding the name of a relative, friend, or acquaintance as a joint owner of a bank account to allow that individual to take care of the original owner’s bills and other financial obligations. If the joint owner has not actively helped with the payment of the incapacitated person’s financial obligations and is unwilling or unable to do so in the future, then the court will rule that such a joint bank account is not a least restrictive available alternative to guardianship.

  1. Durable Power of Attorney

Generally, a power of attorney is a written delegation of authority executed by a mentally sound person to another person. These legal instruments can be used to authorize management of a specific bank account or piece of real estate, or to take a certain action on behalf of the grantor. A power of attorney may also be used to delegate broad authority to manage all assets of the granting party. The grantee, or agent, may only take such actions that are explicitly authorized by the grantor. A power of attorney remains valid until the grantor’s death, revocation, or they are deemed incapacitated in a court of law. A durable power of attorney, although similar to a general power of attorney, remains valid even if the grantor is judged to be legally incapacitated. A durable power of attorney may also delegate authority to plan for and consent to medical, therapeutical, and surgical care, including administering medicine. If an allegedly incapacitated individual has properly executed a durable power of attorney, the document may assist in avoiding a guardianship as a less restrictive alternative. The court must make a final judgment as to whether the arrangement adequately manages all of the needs of the incapacitated person.

  1. Living Trust

A living trust, also known as a revocable trust,  is another type of formal delegation of authority and is comparable to a power of attorney in that it can be specific or broad in terms of its grant of authority. The grantor is the trust’s creator, and the trustee is the person in charge of managing the trust. A living trust, however, only delegates financial management and cannot grant authority over medical decisions. A living trust details how the trust property is to be managed and provides for the distribution of the trust assets following the grantor’s death. A living trust will typically be considered in a court of law as a less restrictive alternative to guardianship pertaining to the trust assets. However, due to the fact that the trustee does not have authority to make medical choices, it is usually necessary to designate a “guardian of the person” to make decisions about medical care, where the person lives, and so on.

Regardless of whether you or a loved one is contesting the court’s incapacity or guardianship judgment or you are seeking to obtain guardianship to protect someone you care about, it is essential you consult with a knowledgeable Florida guardianship attorney who can advise you on less restrictive alternatives to factor in to your trial strategy. The highly skilled legal team at Beller & Bustamante, P.L., pride themselves in their preparation and foresight and can provide you with easy-to-understand, straightforward advice on what to expect in your case. When it comes to making a recommendation or contesting least restrictive means to guardianship, there are many factors to consider. Beller & Bustamante, P.L., is here to help you in making this determination under your particular circumstances. Don’t let just anyone handle your Florida guardianship case; there is simply too much at stake. Contact our guardianship attorneys for a consultation at (904) 288-4414 to begin discussing your guardianship case today.