If you’re one of the diligent few who have taken the time to develop an estate plan, congratulations. If you don’t yet have an incapacity plan, however, there is still work to be done. Serious illness and injury can strike anyone at any time, and a failure to adequately prepare for those incapacitating events can be disastrous. In fact, you could be placing your entire estate at risk by failing to create such a plan. If you’re ready to create an incapacity plan to bolster your broader estate planning effort, it’s important to recognize some key facts about guardianship in Florida.
Guardianship is a Court-Imposed Solution
It’s important to recognize that guardianship is a legal solution to the problem of incapacitation. It is also court-imposed, since a judge assigns guardianship after a person has been declared legally incapable of managing his or her own affairs. As such, it’s often a controversial affair, since it involves the removal of a person’s ability to exercise free will and individual liberty. That type of legal control over another person’s affairs can invoke strong emotions, so it is not something that anyone should take lightly.
Guardianships are often initiated at the request of the incapacitated person’s family. After the court receives information demonstrating that the patient is incapacitated, a hearing is held to hear testimony on the matter so that the court can make a final determination about whether the patient is legally incapacitated and in need of a guardian. That court can declare that the patient is no longer competent to manage finances or medical affairs, and can even restrict driving privileges and voting rights.
Courts Can Appoint Anyone to Serve as Guardian
When the court begins its process for choosing a guardian, it starts by considering whether the patient has already arranged to appoint his own agent to act on his behalf. The court process involves examining the record to determine whether any powers of attorney exists and whether the patient has a health care surrogate document. A search is also made to determine if a living will exists. If none of these incapacity planning documents are in existence, then the court can move to appoint someone to serve as a guardian.
When appointing a guardian, the court looks at the applications that have been submitted. There is a common misconception out there that assumes that courts always choose a close family relative. That is not, however, always the case. Families are usually preferred, but close relatives don’t always get preference when a judge makes these difficult decisions. There are times when a more distant relative might be preferred, especially when there is conflict among those relatives who are closest to the patient. In some instances, courts will bypass the family altogether and appoint an outside party to manage the guardianship.
Guardianship Can be Expensive
One thing that cannot be ignored is the sheer expense associated with the guardianship process – especially when incapacitation lasts for many months or years. There are court and legal costs associated with guardianship, and those costs are assessed against the patient’s estate. Over time, that can result in a substantial reduction in the value of that estate. In fact, there have been cases in which guardianships lasted until the patient ran out of money. Even short-term guardianships can leave financial devastation in their wake. And things get even worse when guardians prove unreliable and engage in reckless or even fraudulent activities at the estate’s expense.
Guardianship Can Be Avoided
As important as it is to understand the perils of guardianship, it’s equally important to understand that you don’t need to choose that option. Remember, courts generally appoint guardians for patients who have no other options. You can avoid the potential for guardianship by taking steps to ensure that you have provided yourself with a designated agent to handle your affairs when you’re incapacitated. A solid incapacity plan can provide you with the protection you need to ensure that your estate is not consumed by legal costs, while securing a clear line of decision-making authority to avoid any need for a court-appointed guardian.
A Sound Incapacity Plan is Key
To prevent guardianship, you need an effective incapacity plan that includes several important documents. First, you need a durable power of attorney for finances to ensure that you have someone designated to manage your financial affairs during any period of incapacity. You can invest that person with as much or as little authority as you desire, empowering him or her to perform critical tasks like managing your accounts, handling investments, or even buying and selling stocks or other assets. The durable nature of the power of attorney document ensures that your POA will survive even after an incapacitating illness or injury.
You should also have a health care advance directive. Like the financial power of attorney, your directive can designate someone to serve as your health care surrogate, to ensure that your medical care decisions are properly conveyed even when you can no longer communicate them yourself. A living will can help in that regard, by dictating your preferences concerning life-sustaining treatments and similar concerns. It’s also important to have HIPAA forms signed so that the right people can access your health care information should anything happen to you. The last thing you want when incapacity strikes is for your loved ones to struggle to gain access to the information they need to help you.
An Attorney Can Help
Guardianship is an incredibly important court-managed process that is necessary for ensuring that incapacitated adults and minors have their interests protected. That doesn’t mean, however, that it’s for everyone. The good news is that you can avoid the more negative aspects of guardianship by creating an incapacity plan that provides you with the support you need during any time of severe illness or injury. At Kulas Law Group, Elder Law & Estate Planning Attorneys, we can help you avoid guardianship in Florida with incapacity plans that will ensure that your family and your interests receive the protection they deserve. To learn more about how we can help you, contact us online or call us today at (772) 398-0720.
Josh earned his Juris Doctor graduating in the top 8% of his class from the Florida State University College of Law.
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