A Case for Guardianships
Before we delve into the subject of guardianships, let me remind my readers that what we’re discussing is based on Florida law, and the rules and laws of other states may vary. Also, I am not a lawyer, so when it comes to something as important as establishing a guardianship for a loved one, I encourage you to meet with an experienced and qualified attorney.
What is a guardianship? Simply put, a court appoints a “guardian” for/to a person because of mental incapacity. The guardian will make decisions (usually non-monetary) for the incapacitated person, who is known, in Florida, as the “ward.” There are different kinds of guardianships. The most common type is for someone who is aging, for example, and has become incapacitated by dementia. A “guardian advocate,” on the other hand, is appointed for a person who was born with disabilities or who has had intellectual disabilities manifest prior to age 18.
Is a guardianship always needed? The answer is “no.” Incapacity does not mean that you must have a guardianship. Guardianships involve the court system. The person whose capacity is under review must have an attorney. An examining committee also gets involved. All this can make for a very expensive process. When are guardianships recommended? Usually, the case for a guardian will come up when a friend, relative or neighbor realizes that a person is being taken advantage of mentally, physically or financially – or is becoming a threat to himself/herself or to others. (In rare cases, someone will want to have a guardian appointed to handle personal property because decision-making has become frustrating or overwhelming.)
If you have all your paperwork in order (like a Will, Trust and Power of Attorney to cover your “things,” and a Healthcare Surrogate to cover your “person”), you might also consider a “pre-need guardian.” This is a person you choose to serve as your guardian should you become incapacitated in the future. Most people elect their spouse for this position, but this is not binding, and the final decision ultimately belongs to the court system. Whomever you do choose for this important role, I recommend you choose carefully!