For many of us, as our parents age, there comes a time when we need to begin thinking about helping them manage their financial affairs. Whether due to dementia or other factors, if a parent is no longer able to make sound decisions and manage his or her own finances, then someone else will need to step in and act on his or her behalf. If you think this may be necessary with your parents, then you may need to see about becoming his or her guardian.
In legal terms, a guardian is someone who has been appointed by a court to act on someone else’s behalf. Florida law recognizes two types of guardianship: (i) guardianship of the person, and (ii) guardianship of the property. A guardian of the person is responsible for managing health care and other aspects of daily life, while a guardian of the property is responsible for managing the financial affairs of the “ward.”
Making the Decision to Become Your Parent’s Guardian
Becoming a court-appointed guardian in Florida requires you to go through a formal guardianship proceeding. If your parent is still able to make informed decisions (if he or she has “legal capacity”), then you can initiate a voluntary guardianship proceeding. This process is usually relatively straightforward as long as no one objects to your petition. If your parent no longer has legal capacity, then you will need to file a petition for involuntary guardianship, and there are more steps involved in the involuntary guardianship process.
Before you make the decision to move forward with filing a petition for guardianship, it is important to determine whether your parent has the requisite legal capacity to consent to a voluntary petition. However, perhaps more importantly, you will also want to consider the other options that may be available. There are alternatives to establishing guardianship of the property that does not have the same legal implications for your parent, but that can still provide the authority needed to manage your parent’s financial affairs in some cases.
Steps to Take When Considering Guardianship of the Property for Your Aging Parent
With these considerations in mind, if you think that it may be time to become your parent’s legal guardian, what are your next steps? While everyone’s circumstances are different, the basic steps involved in seeking guardianship in Florida are as follows:
1. Talk to Your Parent
Unless your parent is no longer capable of communicating, the decision to establish a guardianship of the property is one that you and your parent will need to make together. If your parent does not consent, then your only other option is to prove that he or she has become legally incapacitated – this will not be possible if he or she is of sound mind and simply does not wish to have a guardian appointed. So, you will need to decide when it is the right time to have this conversation, and you will want to be able to clearly explain both (i) what it would mean for you to become your parent’s guardian, and (ii) why you believe that establishing guardianship of the property is necessary.
2. Consider the Alternatives to Guardianship
When discussing the possibility of establishing guardianship, you will also want to discuss the alternatives that are available. Depending on your family circumstances and your parent’s current finances, establishing a joint bank account, power of attorney, or living trust could serve your intended purpose without impairing your parent’s legal rights. However, guardianship exists for a reason. And if none of these alternatives make sense given the circumstances at hand, then you should continue to move forward with the guardianship process.
3. Understand What It Means to Be a Guardian
While becoming your parent’s guardian affords you the ability to manage his or her financial affairs, it also comes with certain legal obligations. For example, in Florida, a guardian of the property is required to obtain a surety bond, file a verified inventory of the ward’s property, and file annual accountings with the court. Before committing to becoming your parent’s guardian, it will be important for you to make sure you have a clear understanding of what this means for you and your parent, and you should have a plan in place for effectively managing your parent’s finances while also meeting your legal obligations.
4. Make Sure Your Other Family Members Are On Board
In many circumstances, the decision to become your parent’s guardian should also be made in consultation with your siblings and any other family members who may have an interest in being involved. It is a big decision, and the last thing you want is for your attempt to help your parents to lead to a family dispute. However, how and when you approach these discussions may be decisions that you want to make strategically. Similar to speaking with your parents, you will also want to be prepared to explain why you believe guardianship is necessary and to answer any questions your family members may have.
5. Consult with a Trusted Local Guardianship Attorney
Due to the significant legal and family implications involved, we recommend that you speak with an attorney in order to develop a plan for moving forward. The decision to establish a guardianship of the property is not a decision that should be taken lightly, and you need to make sure you avoid mistakes that could lead to delays and unnecessary complications. At Beller & Bustamante, P.L., we regularly represent clients in guardianship proceedings and related matters, and we are happy to speak with you about your situation in confidence.
Speak with a Highly-Skilled Guardianship Attorney at Beller & Bustamante, P.L.
Do you have questions about guardianship? If so, we encourage you to get in touch. To schedule a confidential initial consultation with one of our experienced attorneys, please call us directly or send us a message online today.