Have you ever wondered what would happen to your aging parents if they were suddenly incapacitated due to an accident, injury or disease? As they get older, what would happen if their ability to properly keep up with all their medications, regular hygiene, or basic finances became difficult or impaired? Is a Florida guardianship in their future or are they protected and what exactly does that protection mean?
As your parents age and think about their future, what would happen if they became incapacitated? Are they planning for a family member to step in and take over their affairs? Or will the state of Florida have to step in and appoint a guardian for them? The decision may be more difficult than they think.
Unfortunately in Florida, even if you have a spouse, adult children, or other willing relatives, Florida law does not assume that they can make decisions for you. Right now your aging parents should have proper Florida estate planning in place to accomplish this decision making for your parents if they are incapacitated. In Florida, without any Florida estate planning in place your parents may have to have a guardianship.
So, what exactly is a guardian in the state of Florida? A guardian is a surrogate decision-maker appointed through a court-approved process. For example, if minor children receive financial assets, those assets must be managed by an adult, usually in the form of a legally-appointed guardian, unless other planning has been arranged. In addition, disabled individuals may also be subject to guardianship. Under Florida law, a guardian can be a person or an entity, like a financial institution or non-profit organization. The person or entity who is appointed to exercise the legal rights of the person who is considered incapacitated or unable to make their own competent decisions is known legally as a “ward.”
How does the guardianship process work? The guardianship process begins with filing a petition with the court where the alleged ward lives. When the petition is filed, the court will appoint an attorney to represent the alleged ward. A three-member committee of medical professionals is appointed and they will then examine the person and submit their findings to the court. The presiding judge will then conduct an Adjudicatory Hearing within 30 days and appoint a guardian if warranted.
How long does the guardianship process take? If the guardianship is uncontested then it can usually be completed within 90 days. However, if needed, the court can appoint an emergency temporary guardian. You need to know that if an institution is appointed, such as a bank trust department, then the institution can only make decisions about the ward’s property, not about the ward’s person.
Does Florida law prohibit anyone from being a guardian? Yes. The law in Florida prohibits anyone, even family members, from becoming a legal guardian if they have been convicted of a felony, were judicially determined to have committed abuse, abandonment or neglect against a child, or have been found guilty, regardless of adjudication, in certain other offenses.
Now, after reading all the above, it is of the utmost importance that if your parents do not want a Florida court to decide who their guardian should be, they should begin planning as soon as possible. There are Florida estate planning tools that they can have an experienced Florida estate planning attorney prepare right now, prior to any future incapacitation or incompetence. A power of attorney is one estate planning tool that will legally allow your parents to choose a trusted individual, like their spouse or adult child, to have the legal right to act on their behalf, whether it is to handle their financial decisions and/or their healthcare decisions.
Discuss with your parents that their estate planning is not just for themselves but for their family, as well. To give their loved ones peace of mind, they should make plans to contact their Florida estate planning attorney as soon as possible and create a good and solid estate plan for themselves now and in the future.
We know this article raises more questions than it answers and we want to help you. We provide expert service to guide you through the medical, financial, and emotional stress of caring for an aging parent or spouse. Our law firm was born out of the personal journey of Attorney H. Frances Reaves as she cared for her own parents. This experience taught her that most seniors in the United States are ignored by society, the government, business and, sadly, their children. Most children of elderly parents don’t know how many benefits and resources are available for their parents or ailing family members. Let us help you. We encourage you to contact us and schedule a meeting.