estate planning with spouse

If your parent’s health is deteriorating and you are beginning to have concerns about your parent’s ability to protect his or her own wellbeing, you are right to be thinking about the legal options you have available. As our parents age, these types of situations become inevitable, and having a plan in place allows you to avoid uncomfortable, difficult, and potentially dangerous situations that are beyond your control.

However, becoming your parent’s guardian comes with significant responsibilities. It can also have legal and practical implications that your parent may find difficult to accept. As a result, when contemplating guardianship, it is important to thoroughly consider all of the positive and negative ramifications and make an informed decision with your parent’s needs and best interests in mind.

Is It Time for You to Talk to Mom or Dad about Guardianship?

In Florida, an adult guardianship can be established in one of two ways: (i) the adult for whom a guardian is being appointed (in this case, your parent) can consent to the appointment; or (ii) a guardian can be appointed without the adult’s consent through the filing of a petition for guardianship. By addressing the issue relatively early, adult children and their parents will often be able to develop plans that work for everyone and that ensure the children will be able to take care of their parents’ needs when the time comes.

Of course, knowing when to talk about guardianship can be difficult. Here are five examples of situations in which it may be time to have a discussion:

1. Your Parent Has Been Diagnosed with a Form of Dementia

If your parent has been diagnosed with Alzheimer’s disease, Parkinson’s disease, or any other form of dementia, it will generally be in everyone’s best interests to address the issue proactively. Once your parent is no longer able to make informed decisions about his or her finances, living arrangements, and health care, someone else will need to step in and make those decisions on your parent’s behalf. If you have already been appointed your parent’s guardian, you will be able to step into this role seamlessly when it becomes necessary for you to do so.

2. Your Parent Is Beginning to Show Signs of Cognitive Impairment

If your parent is beginning to show signs of cognitive impairment but has not yet been diagnosed, you do not have to wait for a diagnosis to bring up the subject of guardianship. In fact, there is nothing wrong with talking to your parent about guardianship before any health concerns arise at all. You do not have to implement a guardianship immediately, and you and your parent can have a frank and open discussion about what you both want and expect in the event that your parent develops a degenerative mental illness.

3. Your Parent Is at Risk for Certain Other Injuries, Illnesses or Health Complications

Mental health is a significant concern as we age, but there are other health risks associated with aging as well. Traumatic accidents, sudden illnesses, and health complications from medical procedures can all suddenly create an immediate need for guardianship. While these are risks at any age, the chances of an injury or illness having incapacitating effects increases significantly as we get older.

4. Your Parent Is Aging and Owns Significant Assets and Investments

While managing health care and making decisions about medical treatments are perhaps the most common reasons for seeking guardianship, there is also another critical aspect of guardianship: financial management. If your parent has accumulated significant assets during his or her lifetime, or if your parent owns a business or sizeable investments, establishing a “guardianship of the property” will give you the legal authority to manage your parent’s assets when necessary.

Importantly, there are other options here as well (as is also true with regard to health care decision-making). And in addition to considering guardianship, it will be important to consider the various alternatives that are available.

5. Your Parent Is Preparing to Move into a Nursing Home

If your parent is preparing to move into a nursing home in Florida, this can be a good time to talk about guardianship as well. In the nursing home setting, it is important to ensure that someone within your family retains clear financial management and health care decision-making authority. If there comes a time when your parent is no longer able to manage his or her finances or make sound decisions about his or her medical needs, you and your parent will both want to know that you (and not someone else) will be stepping in to handle these matters on your parent’s behalf.

What If Your Parent Won’t Agree (or Isn’t Capable of Agreeing) to Guardianship?

The need to take control of a parent’s finances and health care can arise suddenly; in many cases, there simply will not be an opportunity to plan ahead. If you need to seek guardianship of your parent and your parent either (i) won’t agree, or (ii) isn’t capable of agreeing due to an incapacitating injury or illness, you may need to file a petition for guardianship without his or her consent.

When seeking to be appointed your parent’s guardian without his or her consent, you must be able to demonstrate to the court that guardianship is necessary and that you are both “fit” and “qualified to act as guardian.” While this involves additional steps as compared to establishing a consensual guardianship, the Florida courts recognize the need to establish guardianship of parents in appropriate circumstances, and an experienced guardianship attorney can help you prepare a petition to secure the rights that you believe are necessary.

Speak with an Experienced Attorney in Confidence

If you would like more information about when guardianship is appropriate or the steps involved in establishing guardianship in Florida, please contact us to arrange a confidential initial consultation. To speak with one of our highly-skilled attorneys at a time that is convenient for you, call us or request an appointment online today.