Types of Guardians for Elderly Family Members

Living longer due to advances in medical technology brings with it a greater likelihood that incapacity will occur from a deterioration of the body or the development of a neurological condition affecting cognitive functions. When circumstances of this type happen, it often necessary to intervene and take over the management of the incapacitated person’s private and public affairs through a legal process referred to as guardianship. The guardianship system in Florida is especially robust as a result of the presence of one of the largest elderly populations in the country. Unfortunately, sometimes these relationships do not progress well and family members may feel the guardian is abusing his/her authority or wasting funds. This is especially true with professional guardians. Someone is considered a professional guardian if they represent three or more wards (a person with an appointed guardian) at any one time with none of the wards being the guardian’s relative. A recent news story out of Palm Beach County serves as an example of the conflict that can arise between families and an appointed professional guardian. The story, providing an overview of the guardianship system in Palm Beach County, looks at a man who requested a court-appointed guardian for his ailing father but now believes the guardian is charging excessive fees and deliberately draining the estate. Because of the prevalence of guardianships in Florida, an overview of the types of guardian appointments offered under Florida law will follow below so individuals can make informed decisions about planning for this possibility.

Emergency Guardianship

There are three types of guardians that apply to situations of incapacity for an elderly person. The first, an emergency temporary guardianship, occurs when a person is in the process of being declared incompetent by a court, and the court determines there is a danger to the person’s mental and physical health and/or a risk of waste or loss of his/her property. The appointment is valid for 90 days or the appointment of a permanent guardian, which occurs first. The emergency appointment can, however, be extended an additional 90 days if the emergency conditions still exist. The authority of the guardian can be for the person, property, or both, and the guardian’s powers and duties are specifically enumerated by the court. This is the least desirable way a guardian may be appointed because the ward has little say in how he/she may serve in this role and the extent of authority granted.

Preneed Guardians

The next type of guardianship is referred to as a preneed guardian and involves a competent adult executing a written declaration of who should serve as guardian in the event of incapacity. The authority of the preneed guardian vests immediately upon a judicial finding of incapacity.  However, while preference is given to the designated guardian in incapacity proceedings, the court may reject this person if the court decides he/she is unqualified to serve.

Guardian Advocates

Finally, there are guardian advocates. This is a less restrictive form of guardianship and is used by courts for persons with developmental disabilities that leave them unable to perform some tasks related to their person, property, or estate, but not all. A court declaration of incapacity is not necessary to this appointment, and a person has the option to voluntarily request it.

Seek Legal Advice

Making end-of-life decisions with eye attuned to the possibility of incapacity as some point is never an easy task. However, it is best to tackle this potential situation when you still have the ability to make your own decisions. The Tampa law firm of Bubley & Bubley, P.A. provides legal representation for a variety of estate planning issues, including guardianships. Contact us to schedule a consultation.