South Florida Hospital News
Tuesday September 29, 2020
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July 2008 - Volume 5 - Issue 1
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Avoiding Guardianships

Other than a vague notion that guardianships only happen to forgetful elderly folks, most people do not understand what a guardianship is. Defined in the simplest terms, a guardianship is a legal creation that occurs when a person over the age of 18 is determined by the court to lack the ability to manage their affairs or to conduct some other aspect of their lives. In addition to delegating the management of financial affairs to a guardian, the courts can remove rights, such as the right to drive, and delegate others, such as the right to make medical decisions.

Every person reading this article is potentially a ward (the subject of a guardianship), because at some point they may become incapacitated. This article is written to discuss options that might enable the reader to avoid that guardianship.

At times, a guardianship is absolutely necessary and in the best interest of the person for whom it is established. However, there are many other instances where the guardianship could have been avoided by appropriate planning. Guardianship is the legal option of last resort, to be commenced only if you have exhausted all other options. Guardianships are expensive, cumbersome and intrusive.

Most guardianships are necessitated by a medical or financial crisis. Prior to starting a guardianship proceeding, it is important to determine whether it will be feasible to avoid the guardianship. This will only be possible if the person believed to be incapacitated has previously executed certain documents called advance directives. The following advance directive documents may be used to avoid a guardianship, but they must be signed before the crisis:

For medical decisions, a Health Care Surrogate designates a person to make medical decisions in the event the individual cannot. A Living Will expresses the desire of an individual that life prolonging procedures not be employed in the event of a terminal condition, an end-stage condition or a persistent vegetative state. A properly executed living will would have enabled family members to avoid the heart wrenching drama of the Terri Schiavo situation.

For financial decisions, a Trust names an individual or bank to manage assets and assist with financial matters. The trust should be prepared by a qualified attorney that can provide estate planning and tax advice as well as directions for funding the trust. A Durable Power of Attorney (DPOA) designates a person, called an attorney in fact, to do a broad range of activities, such as the sale of real estate, financial transactions, etc. There is a statutory form that should be used in Florida, and great care must be taken to select a trustworthy person to act as attorney in fact. The Florida statutory DPOA form includes health care authority, but is not as comprehensive as the health care surrogate form referred to above.

It is important to note that there is no advance directive document that gives authority to make residential decisions. If a friend or relative is refusing to move despite the obvious need to do so, a guardianship may be required.

The clearest advantage to having advance directives is that you, not the court, are choosing the person or persons that will manage your affairs or make your medical decisions. However, the documents must be properly executed before a crisis arises. Every adult, regardless of age, should have a living will, a health care surrogate and a durable power of attorney. These documents are relatively inexpensive to prepare, and their potential benefit is enormous.

In the event a friend or loved one is in need of a guardian, consider retaining a certified professional guardian. As a board member of the Broward County Guardianship Association (BCGA), I have come to know many of these fine people. They are bonded, have all passed a state certification exam and are registered with the Florida Statewide Public Guardian's Office (SPGO). Professional guardians are familiar with court procedures, and can relieve the stress associated with the complications of a guardianship, especially in situations where the ward's family members reside out of state. Contact information is available at www.guardiansofsfla.org or BCGA can be contacted at (954) 797-0672.

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