New Standards Issued for Professional Guardians in Florida
Taking for granted the wide autonomy enjoyed by most adults is easy to do for many years, but as one enters the last segment of his/her life, the continuation of this autonomy is not so certain. When someone loses the ability to provide self-care and/or manage his/her personal and financial affairs, it may be necessary to have the person declared legally incompetent so a guardian may be appointed. Guardianship is the legal term used to describe the transfer of authority to another person or entity to make decisions related to an incapacitated individual’s property and/or person. Incapacity can be caused by physical or mental impairment that compromises a person’s ability to function. Guardians are court-appointed, and take over any responsibilities the incapacitated person, or ward, can no longer perform. Ideally, a family member is appointed to this position since he/she is in the best position to know what the ward would want and need, but in situations where this arrangement is not feasible or appropriate, a professional guardian may be designated. Professional guardians refer to persons or entities that have managed three or more non-relatives at any one time. Professional guardians have received criticism in the past for making decisions unfavorable to the ward’s long-term interests, unreasonably blocking family members from seeing the ward, and charging high fees. Florida legislators recently created a new office, the Office of Public and Professional Guardians (OPPG), to rein in unethical behavior, and the OPPG has issued new standards for professional guardians, which will be discussed below.
Overview of New Standards for Professional Guardians
Because professional guardians handle multiple wards simultaneously, and take on this role, at least in part, to generate revenue, public policy considerations and the well-being of the wards dictate that they be subject to higher standards than those expected of a family member guardian. The new standards issued by the OPPG, in coordination with the Florida Guardianship Association, are quite expansive, but a few key points central to the responsible stewardship of an incapacitated ward should be noted. Decision-making standards and a professional guardian’s ongoing duty to a ward’s person or property are touched on extensively in the new standards, and are core components of this position.
Regarding decision-making standards, informed consent and the least restrictive alternative are the benchmarks professional guardians should use. Informed consent is one of the principal concepts governing guardian decisions, which require the guardian to step into the shoes of the ward, and only make decisions when full disclosure of relevant facts is received, similar to a patient consenting to medical treatment. The least restrictive alternative standard says that guardians must make each decision with an eye to maximizing the ward’s self-determination while also protecting the ward’s safety and dignity.
A guardian’s duties differ depending upon whether the guardianship is over the person or the property. Some examples of the duties a professional guardian has when the authority is over the person include:
- explaining rights still held by the ward;
- assessing the ward’s living and health situation;
- contacting other agencies and providers to address the ward’s needs, including medical evaluations;
- ensuring the ward is receiving quality care and living in an appropriate setting;
- ascertaining the ward’s preferences; and
- conducting a visit to see the ward at least once every quarter to assess the ward’s condition.
When the guardianship is of a ward’s property, some of the guardian’s ongoing duties are:
- giving priority to the ward’s needs and goals;
- making decisions in the best interests of the ward’s estate;
- managing financial risks;
- creating an inventory of all the ward’s property, including an accounting of all significant transactions; and
- prioritizing the ward’s well-being over conservation of the estate.
Speak to an Estate Planning Attorney
Preparing for incapacity and other end-of-life issues is not an easy topic to contemplate, but one that is essential to ensuring your wishes are followed and best interests are protected. The Tampa law firm of Bubley & Bubley, P.A. can provide all your estate planning needs, including guardianship or advance directives over medical decisions and property management, and is available to discuss your situation. Contact us today to schedule a consultation.