What Is A Guardian?
Guardianship is the management of the affairs of someone who has been judged unable to manage their own affairs. Generally guardianship is ordered by a court on behalf of someone who is called a ward of the court. A guardian assumes the rights of the ward to make decisions about many aspects of daily life. A guardian is directed by ethics and statute to make decisions in the best interest of the ward.
TYPES OF GUARDIANSHIPS
The two most common types of guardianship are limited and plenary. In a limited guardianship the guardian assumes only the delegable rights specifically given by a court order. The subject of the guardianship (called a ward of the court) keeps all other decision-making rights not specifically outlined by the court. In a plenary guardianship the rights enumerated in Florida law that can be delegated can be applied to the person, their estate, or both.
Guardianship of the person may allow the guardian to have responsibility for the following for the ward:
- Determining and monitoring place of the ward’s residence
- Consenting to and monitoring medical treatment
- Consenting to and monitoring non-medical services such as education or counseling
- Releasing confidential information
- Making end-of-life decisions
- Maximizing independence in least restrictive manner
Guardianship of the estate or property may include anything that is the subject of ownership whether tangible or intangible. The court may order the guardian to take control of and be responsible for the following:
- Acting as representative payee
- Determining benefits
- Obtaining appraisals of property
- Protecting property and assets from loss
- Receiving income for the estate
- Making appropriate disbursements (the guardian may need to obtain court approval prior to the disposition of those assets enumerated in Florida Statute 744,441)
Florida has specific laws governing guardianship proceedings and guardian activities, all of which are designed to protect the interests of the ward. A Florida guardian is accountable to the local court and must report annually on the status of the ward and account for all financial activity. Title XLIII Chapter 744 of the Florida Statutes controls how guardianships are applied. The statutes can be read online.
Alternatives to Guardianships
Because establishing a guardianship is highly intrusive and involves the removal of rights from an individual, it should be considered only after all alternatives have been examined. When an individual still retains the capacity to act on his/her own behalf, the following may be evaluated and determined as viable alternatives to guardianship:
- Case /care management
- Healthcare surrogacy
- Living Trusts
- Durable powers of attorney
- Living wills
- Joint tenancy
- Community services
Case /care management — Geriatric care management is a profession dedicated to assisting elderly people and their families develop plans for long-term care and living arrangements. Care management also involves assessment of needs, coordination, and management of daily and long-term support services.
Healthcare surrogacy — Healthcare surrogacy is when a person is appointed by a competent adult to make all healthcare decisions during any period of incapacity of the maker. The healthcare surrogate has the duty when acting on behalf of the maker to consult with healthcare providers and make the healthcare decisions that the individual would have made for her/himself, not those which the surrogate would have chosen. The designation of a healthcare surrogate may be revoked by its maker at any time.
Living trust — A living trust, also known as a revocable trust, is an alternative to a will for the distribution of one’s assets. During the owner’s lifetime, property can be transferred in and out of the trust by the owner. After the owner’s death, the trust cannot be revoked and the property owned by the trust is not subject to probate.
Durable power of attorney — A durable power of attorney is a special document provided by Florida law that allows a person to act on behalf of another even if the latter becomes incapacitated.
Living wills — A living will (not a living trust) is a properly witnessed written declaration directing the withholding or withdrawal of life prolonging procedures in the event one should have a terminal condition. In Florida, the definition of “life prolonging procedures” has been expanded by the legislature to include the provision of food and water to terminally ill patients. Once the living will has been witnessed and signed, it is the responsibility of the maker to notify his or her physician of its existence. It is an even better idea to provide both the physician and the hospital with copies of the document. A living will may be revoked by its maker at any time.
Joint tenancy — Joint tenancy with right of survivorship is one of several ways for two or more people to hold an interest in the same property at the same time. Almost any kind of property can be held in joint tenancy, whether personal property or real property such as homes, buildings, land, and even bank accounts.
Community services — Community services may include services such as government programs designed for the elderly, home health and companion services, and local civic programs.