At some point in your life, you may be faced with the deteriorating mental capacity of a parent or other loved one. You could also face your own declining mental abilities at some point as a result of an Alzheimer’s diagnosis. In either case, there may come a point at which guardianship needs to be considered. You may already be somewhat familiar with the terms “guardianship” and “conservatorship.” Conservatorship vs. guardianship – what is the difference and which one should you pursue for your loved one or for yourself?
Conservatorship vs. Guardianship – Understanding the Terminology
The first thing you need to understand is the legal terminology used by the various states. Laws governing adult guardianship and/or conservatorship are enacted at the state level, meaning each state may have slightly different definitions, requirements, and procedures. Not all states use both terms. The State of Florida, for example, does not use the term “conservatorship.” Instead, Florida offers different types of guardianship. In some states, however, a guardianship refers to a situation where an adult needs someone to make personal decisions for them because of their incapacity while a conservatorship refers to a situation where an adult needs someone to control assets and make financial decisions for them because of their incapacity. The person in need of a Guardian or Conservator is often referred to as the “Ward” or the “Incapacitated Person.”
Guardianship in Florida
The legal authority for guardianship in Florida is found in Chapter 744 of the Florida Statutes. Florida recognizes both voluntary and involuntary guardianships. Why might you petition for your own Guardian? A voluntary guardianship is typically established for an adult who, though mentally competent, is incapable of managing his or her own estate and who voluntarily petitions for the appointment. As the number of seniors diagnosed with Alzheimer’s continues to climb at an astounding rate in the United States, voluntary guardianships are becoming more common. Because Alzheimer’s disease progresses slowly, it allows a sufferer the ability to choose their own guardian well before the disease causes dementia that then requires the appointment of a Guardian.
Involuntary guardianship involves petitioning a court for the right to be appointed Guardian for someone who is incapacitated. Florida recognizes three types of guardianship, including:
- Guardian of the Person – as a Guardian of the person would be legally authorized to make decisions relating to personal matters and daily tasks involving the Ward. Some common decisions a guardian might make include, but are not limited to, the following:
- Where the ward will live.
- What physician will treat the ward.
- Whether or not the ward continues to be allowed to drive.
- Who may have contact with the Ward
- Guardian of the Estate – as a Guardian of the estate, you would be legally authorized to make decisions relating to the estate and finances of the Ward. For example, you might be able to decide:
- Whether or not to sell an asset
- Which bills to pay
- Whether to purchase stocks or other securities with the ward’s investment account
- Whether to enter into a contract in the Ward’s name
- Plenary Guardianship – a plenary guardianship is warranted when the Ward cannot make both financial and personal decisions. As a plenary Guardian you would make all decisions for the Ward.
Least Restrictive Standard
A guardianship, by definition, is the most restrictive option because it takes away an individual’s right to make his/her own decisions. With this in mind, a judge faced with a petition for guardianship is required to consider other, less restrictive, options first before approving the guardianship. In addition, a judge can limit the authority granted to a Guardian.
A guardianship can also be a limited guardianship. If the court determines that the Ward is capable of making some decisions, but not all, the court will appoint a Guardian but will limit the decisions the Guardian can make for the Ward. Likewise, if the court believes that the Ward can handle some financial decisions, but not all, the court will appoint a Guardian of the Estate but will limit the powers of that Guardian accordingly.
Contact Florida Guardianship Attorneys
For additional information please join us for an upcoming FREE seminar. If you have specific questions about guardianship in Florida, please contact the experienced Florida guardianship attorneys at Kulas & Crawford by calling (772) 398-0720 to schedule an appointment.