Guardianship basically means that you have somebody else who’s going to come in and manage things on your behalf but under court supervision. There is a voluntary guardianship, but that’s only of the property. If you’re the type of person who, you know that you have certain property, and you just know that you’re not very good with that, and you want to have a form of relationship that the courts are going to monitor, you can actually ask them to set up a guardianship of the property for you. You cannot simply say that you want someone to be… guardian of your person.
In that situation, the only way that happens, and it usually starts with somebody else noticing that something’s wrong with you. You become mentally incapacitated or you’ve suffered some sort of severe physical injury or illness that’s made it so that you can no longer take care of yourself.
Anybody in the state of Florida can petition the court to establish a guardianship for you. They simply come before the court and allege that there is something wrong. They appoint an examining committee. And it’s usually a psychiatrist, a psychologist, and then one other person who has some background in the alleged incapacity.
So if, for example, they allege that you had dementia, they’d probably pick someone who was a licensed clinical social worker, or someone who‘d worked with the elderly and seen those sorts of situations. They make a report to the court. Actually an attorney is appointed for the person who is alleged to be incapacitated. And then everybody gets together, the judge looks over the reports, and if need be, a guardian is appointed.
This sets off a flurry of activity. If there’s guardianship of the property involved, we have to do an inventory of that property. Come back and report to the court on, “These are the assets that are currently available.” We also have to say, “Here’s a plan for how we’re going to take care of this person during the coming year.” And every year thereafter we have to report on what’s happened financially and personally within the guardianship so the courts know that the person’s being taken care of.
The first couple of years in a guardianship are usually very stressful, very expensive, and… usually not a good experience for anybody involved. The courts do their best to make things as good as they can, but it’s just not a great situation to be in. If you have the durable power [of attorney], if you have the healthcare surrogate, the living will, you can avoid guardianship.
The first couple of years in a guardianship are usually very stressful, very expensive, and… usually not a good experience for anybody involved.
Unfortunately, we do see situations where people talk for years about, “One day I’m going to do this” and they don’t, and now they’ve gone too far to even do a durable power [of attorney] because if they don’t have capacity they can’t sign those documents. Or if someone has a sudden event (either an accident or illness that suddenly makes the capacitated) there’s no going back.
So you really want to avoid guardianship, but if you need to go through the process, I can help you through it.
– David Pilcher is an experienced estate planning and probate attorney with Bogin, Munns & Munns, a full service law firm with offices in Orlando, Clermont, Kissimmee, St. Cloud, The Villages, Orange City, Titusville, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Pilcher welcomes questions and comments regarding the above and can be reached at [email protected].
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