Avoiding Guardianship: Make the Decisions Now to Avoid the Pain Later

Grandmother covering her eyeGuardianship is a legal process. When a person becomes incapacitated and can no longer make sound decisions about their care or their finances, and they have not put the proper paperwork in place before becoming incapacitated, a Court must get involved and determine, through a series of examinations, legal filings, and hearings, that the person is incapacitated. The Court must determine to what extent the person is incapacitated and appoint someone (a Guardian), whether they be a family member or a professional, to make decisions for the incapacitated person (legally called a “ward”) which that person can no longer make for themselves.

When Guardianship is necessary, the estate planning and guardianship attorneys at Woodward, Pires & Lombardo, P.A. strive to make it a smooth and efficient process. Call (239) 394-5161 for a consultation.

However, even in the best-case scenario, Guardianship involves thousands of dollars in legal fees and examinations by doctors unknown to the incapacitated person. It also results in continued Court oversight, including at least yearly accountings and periodic filings and approvals needed from the Judge for expenses of the Guardianship estate to be paid.

Additionally, in a perfect situation, the Guardian is a loving family member who refuses compensation and acts only in the incapacitated person’s best interest. Unfortunately, that ideal scenario can be rare – there is often fighting among family members for control that can ruin relationships and tear apart families. Opposing family members may file Petitions requesting to be appointed as guardians, not in the ward’s best interest, but to gain control of the finances.

If it is not a family member, the Guardian may be a professional – who may be excellent and make good decisions in the best interest of the ward, or unfortunately, may be not as excellent and may make poor decisions that result in poor care of the ward. And a professional Guardian, even if worthy, will be a stranger – an expensive stranger. However, you can avoid the Guardianship process and expense through a couple of simple and inexpensive documents signed while you still have the capacity and the ability to make your own decisions and plans. Contact the guardship attorneys at Woodward, Pires & Lombardo, P.A. to assist you with drafting and executing these critical documents.

Durable Power of Attorney

The first and most important document for avoiding Guardianship is a Durable Power of Attorney. In a Durable Power of Attorney, you appoint an “agent” or “attorney-in-fact” who can stand in your shoes financially and can sign contracts on your behalf, sell and manage property, handle investments, pay bills, sue, and be sued … basically, they can do anything you can do financially. A Power of Attorney is considered a less restrictive means of taking care of your finances when you become incapacitated, so Guardianship is unnecessary. Your appointed agent can pay your bills and take care of your finances without the Court’s involvement.

However, the critical thing to understand is that Florida law does not allow a “Springing” or “Non-Durable” Power of Attorney. A “Springing” or “Non-Durable” Power of Attorney would only go into effect when you are incapacitated. As Florida only allows for a Durable Power of Attorney, the Power of Attorney goes into place and is valid as soon as it is signed. So while it is an essential document for avoiding Guardianship, it is also a scary one since your appointed agent may choose to use it if they know about it and have access to it before you are ready to give up financial control. To mitigate this:

-Make sure you appoint someone you trust to act in your best interest.

-Do not give the appointed agent a copy of the Power of Attorney document. (Instead, we recommend telling the agent that one exists and making sure that it can be found should they become incapacitated.)

-It is usually a better solution to have a Revocable Trust and a Power of Attorney.

Revocable Trust

A “Revocable Trust” is a document that outlines a plan for how your assets should be managed and used during life, during potential incapacity, and after death. “Revocable” means that it can be changed at any time. You can be the Trustee of your own Revocable Trust until you are incapacitated or until you choose to resign. So by having a Trust and having most of your assets in your Trust, you can keep control of your assets for as long as you are able to serve as Trustee. You can appoint a Successor Trustee who, like your agent under your Power of Attorney, should be a trusted person. But unlike in a Power of Attorney, a Successor Trustee will not have power until you are incapacitated.

Furthermore, in a Revocable Trust, you can specify how you want to be taken care of during any incapacity. For example, you can state that it is your wish to remain home, and be taken care of by in-home caregivers, even if that is more expensive than assisted living. If you have a Trust, then the Power of Attorney is only effective against assets outside of the Trust, so it still helps you avoid Guardianship, but you get to maintain current control.

Health Care Surrogate

To further avoid Guardianship, you should have a Designated Health Care Surrogate. Unlike the Power of Attorney, this is “Non-Durable,” meaning that you designate the person who will make your health care decisions only if you are unconscious or incapacitated. Again, unlike the Power of Attorney, we recommend giving copies of these to your designated Health Care Surrogate(s) so that they can quickly get information from doctors or hospitals in the event of an accident and can quickly give consent to necessary treatment.

How to Avoid Guardianship

You can avoid a Guardianship with a Durable Power of Attorney and a Health Care Surrogate. Making these decisions and signing these documents now can prevent a tremendous amount of expense, court involvement, and family discord in the future. In addition, a Revocable Trust can give you even more control over how you want to be cared for and prevent an (often well-meaning) agent from taking control over your finances before you are ready to give up control. So make the decisions now to avoid the pain later.

Contact estate planning attorney Anthony J. Dimora at Woodward, Pires & Lombardo, P.A. for a consultation today at (239) 394-5161.

Related post: A Complete Introduction to Florida Wills and Trusts