According to a 2021 survey, only two out of three adults have an estate plan, even though it’s a necessary process for ensuring that your wishes are carried out in the event of one’s death or incapacity.
There are common misconceptions that estate planning is only for the wealthy or doesn’t need to happen until someone reaches retirement age. The reality is that estate planning is vital whether you’re young or old, single or married. One of the reasons estate planning is so important is because it allows you to specify what happens if you become incapacitated due to a disability or cognitive decline.
Without an estate plan, if a loved one becomes incapacitated, the court may appoint a guardian to manage their medical care and every aspect of their life. You can, however, apply for guardianship, allowing a family member to make these decisions instead of a stranger.
This article will outline what guardianship means and how you can apply to become a guardian for a loved one.
A Note About Avoiding Guardianship
Estate planning gives you the option to avoid guardianship, which can be intrusive and costly. Your loved one can assign power of attorney, create a trust, appoint a health care surrogate, and determine other planning measures in an estate plan. These appointments would take effect only if needed, allowing a loved one to maintain independence for as long as they are able.
However, in the absence of this advanced planning, a guardian may be required to assist an incapacitated person with day-to-day care and decision-making functions.
In the case of an older adult, the most common reason to seek guardianship is mental incapacity or incompetence. Cognitive decline is sadly common among our aging population, with over 11% of seniors over 65 battling Alzheimer’s dementia. That number can skyrocket to over 30% in those over 80 years old.
What is Guardianship?
Guardianship is a legal process where the court determines whether someone can care for themselves. If the answer is no, the court will appoint a guardian to manage the incapacitated person’s care.
The person appointed as the guardian takes over decision-making in the area of health and personal decisions. Guardians may also exert control over the incapacitated person’s finances to ensure that the elderly person’s bills are paid, and their needs are being met.
What Does a Guardian Do?
A guardian is empowered to make decisions on behalf of the incapacitated individual while also handling personal affairs.
The responsibilities of a guardian could include:
- Coordinating routine healthcare
- Planning for future medical needs
- Managing personal care, including household maintenance and hygiene
- Handling finances, such as paying bills
- Entering into contracts
Types of Guardianships in Florida
There are multiple types of guardianships, including those for minors. Adult guardianships tend to fall within two categories:
- Limited Guardian: If the court determines that the person is not fully incapacitated, it can elect to allow them to maintain more control over decision-making authority. For example, the incapacitated person may still be able to make decisions in areas where they are still able, and the guardian manages other aspects where capacity is lacking.
- Plenary guardian: Plenary guardianship is a guardianship measure that is appropriate when the person is fully incapacitated. Here, the guardian has complete control over all aspects of the person’s life. All legal rights are assigned to the guardian.
The Process of Appointing a Guardian
While the court is most likely to choose immediate family members as a guardian, the court may also consider other relatives or even an attorney trained in this area to be the guardian. It can be a major responsibility to serve as a guardian for a loved one, but it also allows you to protect those you love from being taken advantage of, or worse.
The process of becoming a guardian involves four steps:
Step 1: File the appropriate petitions. There are separate forms to file to determine incapacity and order a guardian.
Step 2: Determine incapacity. Next, there will be an evaluation to gather information about the person’s functional abilities.
Step 3: Conduct an incapacity hearing. A hearing will be conducted that reviews medical reports and expert testimony from the incapacity evaluation.
Step 4: Establish guardianship. A judge will determine whether guardianship is needed, what level of control should be established, and whether the person petitioning for guardianship meets the requirements for the role.
At Law Offices of Sherri M. Stinson, P.A., You Are Valued and Heard, Today, and For The Rest of Your Life
If you are interested in becoming a guardian for a loved one or have reason to believe that there has been abuse or exploitation among the person who currently has a power of attorney or another directive, please get in touch with us to discuss your options.
We understand that guardianships can be an uncomfortable topic. Our mission is to help protect the elderly so that they can leave a legacy to be proud of while we protect their interests, give them peace of mind, and take care of them and their families. At the Law Offices of Sherri M. Stinson, P.A., our estate planning attorneys will develop a course of action best suited to your needs and goals. Call us at (727) 361-9302 or submit your contact details to schedule a consultation.
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