8/3/2019 Adult Guardianship in Florida: When It's Necessary, and How to Avoid It

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My law firm recently

hosted its annual meetingto bring social workers up-to-date on legal develop-ments that may affecttheir clients. This year weexplained guardianship,a concept that is poorlyunderstood by the publicand even by many pro-

fessionals. However, inorder to do effective long-term care planning andestate planning, its important tounderstand the basics of guardianship.

If an individual has failed to createdocuments that empower someone toact on his behalf, guardianship maybe the only legal option to protect

the individual. Any interested party,often a family member, may initiate aguardianship proceeding if he believesa person cannot manage his ownaffairs and/or is a danger to himself orothers. If the court finds the personto be incapacitated, a guardian is

appointed for him. The guardian isresponsible for managing the wardsfinances and/or for decisions regard-ing medical care, personal care andthe best type of residential setting

for the ward.As to the definition of incapacity,

this can be somewhat subjective. Awoman of modest means unable topay her bills because she is spendingmoney on clearly fraudulent invest-ments may be found incompetent,whereas her wealthy counterpart maynot be. Refusing life-saving medical

treatment is not necessarily evidenceof incapacity, either; the court willconsider the individuals reasons forrefusal, such as longstanding religiousbeliefs.

Seeking guardianship for someoneyoure concerned about should be alast resort. The process is protracted,complex and expensive. It can also

create deep family divisions andt r a u ma . I t i s n o t u n co mmo n f o r

siblings to disagree

about their parents ca-pabilities and whetherguardianship is trulyneeded. And the per-son whose competenceis being questionedalmost always feelsangry and betrayed byloved ones.

T h e b e s t w a y t oavoid becoming thesubject of a guardian-

ship, for your own sake and for thesake of your family, is to create appro-priate estate planning documentswhile you are competent to do so.These documents may include a LivingTrust, which gives a successor trustee

the ability to manage trust assets; aDurable Power of Attorney, whichgives your agent the power to man-age non-trust assets; and a HealthCare Power of Attorney (Health CareSurrogate) which allows someone tomake medical decisions when you

are not able to make themfor yourself.

T h e s e s t e p s e mp o we rsomeone else to make deci-sions, but do not actuallyterminate the creators abil-

ity to do so. If an individual who hasdone the proper planning refuses torelinquish control to his trustee, agentor health care surrogate, guardianshipmay be the only recourse. Fortunate-

ly, cases like this are infrequent.If you are thinking about seeking a

guardianship for someone, or lookingto prevent becoming the subject of aguardianship, please call The Karp LawFirm for assistance.

Joseph S. Karp is a nationally certifiedand Florida Bar-certified elder law attorney(C.E.L.A.) specializing in the practice of

Trusts, Estates and Elder Law.His offices are located at 2500 Quantum

Lakes Drive, Boynton Beach (561) 752-4550;2875 PGA Blvd., Palm Beach Gardens(561) 625-1100; and 1100 SW St. Lucie W.Blvd., Port St. Lucie (772) 343-8411.

Toll-free from anywhere: 800-893-9911.E-mail: KLF@Karplaw.com or websitewww.karplaw.com.

Read The Florida Elder Law and Estate

Planning Blog atwww.karplaw.blogspot.com.

Joseph S. Karp, C.E.L.A.

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Listen to Joe Karp and Anita Finley

on Saturday, September 24 from 7:30-8:00 AMon WSBR 740AM and on the

Internet at www.wsbrradio.com.

Understanding the Basics of Guardianship