A very common phone call we receive at our estate planning law firm is from people worried about “becoming a ward of the state.” People are concerned that the government will use its legal authority to take over their assets and their decision making if they suffer from physical or mental incapacity. In Florida, the legal term for this is guardianship, and the process for this is even scarier than you’d think.
At the Law Offices of Sherri M. Stinson, we want you to know that you are valued and heard today, and for the rest of your life. Read on to learn how to avoid becoming a ward of the state. Then contact our estate planning attorney at (727) 351-7057 to schedule a consultation.
Someone Could Take Away Your Voice and Your Freedom by Making You a Ward of The State in Florida
The steps to take away your liberty by alleging your incapacity are few and frightening. This is why you need to take the steps to protect yourself with proper documentation and careful selection of your agents or surrogates.
First, someone must file a petition with the court asking the court to determine that you are incapacitated. The Court will appoint a committee of people who will make a physical and mental examination of you and report back to the court whether you are capable of managing your own affairs.
Second, if the majority of the committee finds that you cannot care for yourself, then the court will appoint someone who you may or may not know to manage all of your legal and financial affairs. The process removes you of your voice to say what you want, is expensive, public and it generally lasts until you die.
So, how do you avoid being treated like a criminal simply because you grew old? The short answer is simple: See an experienced and competent estate planning attorney.
A Good Florida Estate Planning Attorney Will Guide You Through the Documents that are Necessary to Protect You
Since every person is different, your set of estate planning documents may have the same names, but the content of the plan may be different than someone else’s. One person may need a trust and a will, along with a durable power of attorney, health care surrogate and living will while another person may only need a will along with the incapacity documents.
It is important that the attorney you see understands what happens if your documents do not work. We regularly see poorly-drafted documents in which an attorney only names one person. If that person dies, then you’re back to the possibility of being a ward of the state. Our experienced legal team can help you select backup agents or surrogates to help you retain indirect control over your affairs in an event of incapacity.
You Need To Be Thorough in Selecting Consenting Fiduciaries for Your Estate Planning Documents to Avoid Becoming a Ward of The State
Our office had a case a number of years ago where someone believed that a person (Let’s call her Alice—not her real name) was incapacitated. Alice was smart, and she had previously visited with an attorney who prepared a durable power of attorney and health care surrogate. You would probably think, “Great, Alice doesn’t have a problem because she prepared her documents! Go, Alice!”
Unfortunately, Alice’s previous attorney was not thorough, and did not talk to her about how to choose her fiduciaries in these documents. Alice named person A after a less-than-2-minute discussion that went something along the lines of, “Will you help me if I need help?” Person A agreed to this simple request with, “Yes.” Alice also named person B, but unfortunately, she didn’t ask that person whether he even wanted to do it.
When guardianship was filed on Alice, person A had no idea what she had signed up for and declined to help. When person B was asked if he wanted to help, he said no, because it was against his work rules to help her. Due to these oversights, Alice found herself in front of the court, fighting to avoid having her rights removed.
Fortunately, the petition was eventually dismissed, and Alice retained her rights. However, had the petition not been dismissed, she would have ended up with an unknown person managing her affairs.
Family Dynamics, Knowledge, Skills, and Personality Type are Important Factors When Choosing an Agent or a Healthcare Surrogate
It is important that the attorney go in-depth with you about your family dynamics, as well. Not every person is fit for every position. Being an agent under a power of attorney requires a different set of skills than being a healthcare surrogate.
Naming people in your estate planning documents is very much like hiring for a job. You need the right person who is qualified for the position, and you should not just choose them on the basis of location or because they are the oldest child.
Your Estate Plan Should Address Your Unique Goals and Challenges
Unfortunately, many people view wills, powers of attorney, and health care surrogates as commodities, much like buying groceries. When a plan isn’t fashioned properly, the complexities of the law and the lurking dangers and pitfalls can cause expensive problems for the average person.
It is not uncommon for fees in guardianship to cost in the tens of thousands of dollars. Not to mention, if you do end up in a guardianship and need emergency help, the process can be lengthy: It can take 45-60 days for someone to even secure the authority to start helping you.
Estate plans are much like insurance: You hope you don’t need it, but if you do, you want to make sure you are covered. Remember, you’re never too young, you’re never too old, but you might be too late.
Our Estate Planning Attorney Team Can Help You Avoid Becoming a Ward of The State in Florida
We can help you understand your rights and responsibilities as you avoid becoming a ward of the state. We are well-versed in Florida guardianship laws and the legal documentation and processes involved in avoiding a guardianship, and we can sit down with you to discuss your unique circumstances while ensuring your interests remain at the forefront of the conversation.
If you need assistance in avoiding or terminating a guardianship, we can help. Contact our team at the Law Offices of Sherri M. Stinson, P.A., today at (727) 351-7057, or fill out our online form, to speak with an estate planning attorney.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.