Recently, a popular Netflix series has brought guardianships into the spotlight. Netflix’s I Care A Lot focuses on abusive guardianship situations. If you’ve seen, it may have sent chills up and down your spine. You may even have a few questions about how you avoid this situation and at what times a Florida guardianship may be beneficial. The most voiced question to me about the series has been, “Do things like this happen in real life?” My answer normally is, “Gee, I certainly hope not!” But, at the same time, I go on to encourage the public to plan ahead with solid estate planning documents. That is the only way we can attempt to prevent anything like this happening. The truth is that these things happen more than we think, but maybe not on the large scale shown in the TV series. In reality, there are many instances of elder abuse, abuse of Powers of Attorney, one sibling taking advantage of a parent and more. We all need to be diligent to protect and safeguard the elderly. If you suspect elder abuse, please see the hotline information below.
What is a Guardianship?
In the legal world, a guardian is someone appointed by the court to take care of a person (called the “ward”) and his/her property/finances, and possibly more, if he/she is deemed legally incapable of doing so themselves. The legal relationship between the two people is called a guardianship. Someone, usually a family member or close friend, will petition the court to create the guardianship. A guardian may be appointed for someone at any age whether they are a minor, an adult, or an elderly person. Courts may appoint a guardian for a variety of reasons including mental health issues, physical health issues, or other factors. A guardian can be nearly any adult living in Florida (that passes the background checks). It is preferred that the proposed guardian is a relative, but it isn’t mandatory. There are also people that serve as professional guardians.
Benefits of Florida Guardianships
At times, a guardianship is a good thing as there is court overview over what is happening, unlike a power of attorney that is private (unless an action is brought before the court due to abuse). There are actually multiple forms of guardianships in Florida. Under the law, the court must use the least restrictive arrangement based on the situation. This means that the court can only allow a guardianship if it is necessary to do so. Guardianships can also be partial or full. A partially incapacitated person may be able to retain control of some aspects of his/her life, but may need help with others. The legal term for a partial guardianship is a limited guardianship. A full guardianship is called a plenary guardianship. Guardianships can also be temporary. If or when a person recovers from their temporary incapacity, he/she can regain control of their own health care decisions and control over their property and assets.
Guardians in Florida also have certain requirements and accountability checks that they must complete in order to remain in their roles as guardians. Guardians put up bonds, take formal training, submit to background checks, credit reports and offer up personal references. Perhaps the most important accountability check is the annual report that the guardian must file with the court. If the court finds that a guardian has abused its power, the guardian will be removed from the position and replaced with another.
Pre-Planning As An Alternative to Guardianship
Florida guardianships over adults can get expensive. Most actions are not resolved in under $10k in attorney’s fees. But, in the end, the ward can get needs met and the proper handling of assets. However, despite some benefits, you are likely not comfortable with a guardianship arrangement, and would like to do what you can to avoid one.
As estate planning and elder law attorneys, we plan for the future with “incapacity planning.” Documents are drafted with that potential in mind resulting in very robust documents that actually help your loved ones care for you. We see too many “bare bones” documents coming out of the do-it-yourself legal websites. These documents, while legal, often have NOTHING in them of value to actually assist your family in taking the needed actions to create irrevocable trusts, plan for Medicaid and more. It is incredibly disheartening for my consults to learn that the document is flawed. At times, there are technical faults such as with the witness and notary signatures, but most times the language just does not contain enough allowances. Brief, general powers of attorney can be entirely useless. When it comes to a power of attorney that will avoid a guardianship, you need specific, clear and powerful language and all Florida “super powers” must be specifically initialed. Our office helps clients prepare various legal documents for estate planning, elder law, powers of attorney, and more. Having these documents in place now will help you avoid the need for guardianship in the future.
Florida Guardianship, Estate Planning & Elder Law Attorney
While guardianships serve their purpose, it is more cost-efficient and less embarrassing to avoid them. Make sure that your wishes and the wishes of your loved ones are properly set forth by seeking the help of an experienced Florida attorney. The Law Office of Lori Vella helps clients of all ages pre-plan for their future as well as help protect the health and property of their friends and family with guardianships.
If you are an elderly person that is experiencing abuse, or if you know of any instances of abuse, please call the Elder Abuse Hotline: 800-962-2873.
Florida Relay 711 or
TTY: 1-800-955-8771
To report abuse online, click here.
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.