What happens when seniors become seriously ill or injured and can no longer care of themselves? What if advanced age inhibits a senior adult’s ability to keep up with necessary medications, regular hygiene, or basic finances? Many people think that a family member could step in and take over their affairs, if that is an option. It is not, however, always that easy.
Even if you have a spouse, adult children, or other willing relatives, the law does not assume that they can make decisions for you. You should have proper estate documentation or another solution in place to accomplish this. In Florida, that usually means guardianship.
A guardian is a surrogate decision-maker that is appointed through a court-approved process. Minor children who receive financial assets must be managed by an adult, usually in the form of a legally-appointed guardian, unless other planning has been arranged. Disabled individuals may also be subject to guardianship.
Under Florida law, a guardian can be a person or an entity, like a financial institution or non-profit organization, that is appointed to exercise the legal rights of a person who is considered incapacitated or unable to make their own competent decisions, known legally as a “ward.”
The guardianship process can involve filing a petition with a local court where the alleged ward lives. Once the petition is filed, the court will appoint an attorney to represent the alleged ward. An appointed three-member committee of medical professionals will then examine the person and submit their findings to the court (note that the process is different for minor children as wards). Within 30 days, the presiding judge will conduct an Adjudicatory Hearing and appoint a guardian if warranted.
An uncontested guardianship can usually be completed within 90 days, though the court can appoint an emergency temporary guardian when needed. If an institution is appointed, such as a bank trust department, then the institution can only make decisions about the ward’s property, not about the ward himself or herself.
Florida law prohibits anyone, even family members, from becoming a legal guardian if they have been convicted of a felony, were judicially determined to have committed abuse, abandonment or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses.
If guardianship is not desirable, there are alternative estate planning steps that seniors can take prior to incapacitation or incompetence. A power of attorney document, for example, may allow a trusted person, like a spouse or adult child, the legal right to act on the senior’s behalf. A living trust may allow a designated person to handle financial affairs. Seniors who receive income from government benefits can authorize a “representative payee.” Other estate measures may also apply.
These legal issues can be complex and difficult to decode. Contact our office for help navigating these challenges.