Guardianships

If you or a member of your family become incapacitated who can be trusted to make decisions about health care and financial matters?

At Behar, Gutt & Glazer, P.A. we advise clients on:

• How to make their wishes regarding the management of their affairs known
• What to do if a loved one is being exploited or refuses to accept medical care and assistance
• How to handle all legal issues surrounding guardianship

Guardianships can be established through the courts for adults (over 18) who do not have the mental capacity to manage their own affairs and for minors. The kind of guardianship established is largely dependent upon the Ward’s capacity level. There are several types of guardianships:

1. Limited guardianship – certain rights of the incapacitated person (the ward) are removed and delegated to the Guardian. This is used when the ward can make some but not all decisions.
2. Plenary (full) guardianship – all rights of the Ward are removed and managed by the guardian. This is used when the ward is incapable of exercising any rights for himself or herself.
3. Guardianship of person – the Guardian oversees the ward’s personal care, including medical and choice of residence.
4. Guardianship of property – the Guardian manages the ward’s property, including income, assets, bills and finances.
5. Guardian Advocacy – for high functioning developmentally disabled individuals who need assistance with the management of their affairs, but who do not require the removal of their rights
6. Voluntary Guardianship – certain rights are delegated to a guardian to assist with the management of property only. This type of guardianship is only available to a ward who is mentally capacitated but, due to age or physical infirmity, requires the assistance of a guardian.
7. Minor Guardianship – although a minor’s parents are the natural guardians of their child and property, a guardian may be appointed in certain circumstances when the minor receives either an inheritance or receives an award for damages due to an injury. A guardian can also be appointed when either the minor’s father or mother are both deceased or are unable to care for the minor.

Guardian accountability and guardianship litigation

Florida laws are designed to protect the interests of the ward. Consequently, the guardian is held accountable to the local court. The guardian is responsible for yearly reports that show accounting of financial activity and that report on the condition of the ward. The guardian must adhere closely to Florida laws governing guardianships.

Disputes can arise that require guardianship litigation. Commonly contested matters in guardianships include the following:

• Who would best serve as guardian?
• Is the ward actually incapacitated?
• Are there less restrictive alternatives that can be used in lieu of a guardianship?
• Has the appointed guardian been negligent in his or her duties?

Legal Use of Guardianships

Establishing guardianships may also be a way of recovering stolen assets if there were abuses of powers of attorney or joint accounts or undue influence over the senior to alter estate planning. Through guardianships, evidence can be gathered and beneficiary designations can be restored. Emergency guardianships can also be used to protect a vulnerable adult who lacks capacity when there appears to be imminent danger that the physical or mental health or safety of the individual will be seriously impaired or the person’s property is at risk, unless immediate action is taken.