Establishing a guardianship can be daunting, and the decision to become a guardian should only be made if guardianship is appropriate for your loved one’s situation. At HKH Elder Law we help people set up guardianships, when necessary, but we also help people avoid guardianship by advising and creating less restrictive alternatives such as a power of attorney, health care surrogate, living will and other legal documents. Most people are able to avoid guardianship by having these kinds of documents in place. For example, a power of attorney lets someone you appoint make decisions for you should you become unable, preventing the need for a guardianship.
If a loved one becomes unable to make decisions for themselves, most of the time these documents can be used by the agent to carry out that person’s responsibilities. Unfortunately, there are times when a person does not have those documents in place, or the person lacks ability and acts in ways that are harmful to him or herself personally or financially. At that time the court may need to appoint a substitute decision maker, or “guardian.” Appointing a guardian is a last resort.
Guardianship over an adult requires a finding of incapacity The court must follow very specific laws and procedures to avoid removing someone’s rights wrongly. Generally, a person is judged to be in need of a guardianship when they show lack of capacity to make responsible decisions; but a person can’t be declared incompetent simply because they make irresponsible or foolish decisions. It must be determined that the person lacks the ability to make sound decisions. For example, a person may not be declared incompetent simply because they have a drinking problem that affects their health, or they spend money unwisely. Also, mental illness is also not, by itself, enough to declare a person incompetent. Even then, there must also be a finding that the individual doesn’t have less restrictive alternatives in place that would avoid the need of a guardianship. Thus, guardianship may not be right for every situation.
Once the incapacity is decided, then a guardian must be appointed. Who cannot be a Guardian
- No one under the age of 18
- No one who has been convicted of a felony
- No one who is incapacitated or otherwise unfit to serve as guardian
- No one who has been judicially determined to have committed abuse, abandonment or neglect of a person or child
- No one who is determined by a court to have a conflict of interest
- No one who provides substantial professional services to a proposed ward or who is otherwise a creditor of the proposed ward, or who is an employee of such person or entity
The proposed guardian often must undergo background checks, and complete training requirements before the court will consider them for appointment. Once appointed, a guardian must follow Florida guardianship law, which requires, among other things, constant record-keeping and annual accountings of all guardianship activities for the Court’s review.
If you are considering guardianship of a loved one, we encourage you to see if less restrictive alternatives are in place and able to be used. If your loved one has ability to execute less restrictive alternatives, or if they cannot, either way, we have the experience to help. Call us to schedule a complimentary consultation.