Thanks to the Britney Spears case and the Netflix movie “I Care a Lot”, guardianships and conservatorships are on the top of people’s minds. Many of my clients have asked me how they can avoid these types of situations for themselves. Here is a guide to help you avoid being placed in a guardianship with someone you don’t trust.
What is a Guardianship or Conservatorship?
In Florida a conservatorship and a guardianship are almost the same thing. A legal conservatorship is when a person called the “conservator” is placed in charge of another person. That person is legally called the “absentee” (when they are missing) or “ward” (when they are unable to care for themselves).
Conservators must petition the court and present evidence of why they believe the ward needs a conservator. Once the court grants the petition, they become a “guardian” in the eyes of the law. The guardian is then legally responsible for the well-being of the ward. As guardian they can control the wards personal life, medical decisions, and finances. Anyone mentally competent person over the age of 18 can become a guardian in the state of Florida. Due to the nature of the ward-guardian relationship, a guardian is governed by law.
Why Does This Happen?
Often guardianships happen to older adults because they didn’t have other safeguards should something happen. Without safeguards, caring family members can only legally petition the court to handle your affairs. You can avoid a guardianship by having someone you trust to handle your personal affairs with a few estate planning documents.
HIPPA Release
A HIPPA release is a legal document that allows your health information to be disclosed to a person of your choice. Your doctors cannot give out information without your consent. This includes family members. In a medical emergency, the HIPPA release can help your family from being shut out of your care plan.
Healthcare Surrogate
As a healthcare surrogate, your designated family member would be stepping into the role of the patient as if they were you. This document gives the person you choose the legal authority to talk to your doctors, manage your medical care and even make medical decisions for you. It can also be used if you are conscious but don’t want to be fully responsible for your medical care.
Durable Power-of-Attorney
A durable power-of-attorney is a legal document that gives your chosen person the authority to make several decisions on your behalf. This includes healthcare decisions, financial decisions, or signing legal documents. This means that if you need extensive care, this person can help you pay bills, pay your mortgage, and manage your bank accounts temporarily while you get better. The durable POA works if you are unable to make decisions on your own and can be revoked at any time.
Living Will
Many people confuse the durable power of attorney, and the living will, however they are very distinct documents. With a living will, you are legally telling your caretaker what your healthcare wishes are if you are unable to make them yourself. This could include directives as to what should be done if you are in a coma, if you have a do-not-resuscitate order, or if you wish to donate organs. Experts recommend that a living will should be discussed and shared with all parties involved in your healthcare before an emergency happens.
By taking control of your situation, you can avoid being placed in a forced guardianship that you cannot end without extensive court proceedings. As the AARP has advised “inaction may be hazardous to your health”. Don’t hesitate, contact the Law Office of Lori Vella today.
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Lori Vella is an Estate Planning and Business Attorney. She works virtually throughout Florida and New York, but has her home office in Tampa, Florida. She is mom to a little boy which ignited the passion for helping other families. She and her son enjoy car rides, playgrounds and taking mini-adventures. They also have an organic garden that surprisingly yields vegetables. Lori considers herself well-versed in Seinfeld and welcomes any trivia!
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website does not create an attorney-client relationship between you and this firm.