Florida’s problematic guardianship system has gained national attention in the recent months, as survivors come forward with guardianship horror stories and advocates push for change.
Having seen so many cases of abuse and neglect, lawmakers in the Florida house and senate have proposed various measures that could change the way guardians are assigned and hold them more accountable for the well-being of their wards.
The Florida guardianship system is far from perfect, and these new changes may only represent a small step in the right direction. Florida’s guardianship system has long been criticized for depriving the elderly and incapacitated of basic human rights, providing assistance at the high cost of personal freedom and dignity.
The decision to place a loved one under the restrictions and protections of a court guardianship is a difficult one. Setting up a guardianship for a loved one who is incapacitated may be necessary if they are incapable of making decisions and caring for themselves, but it should only be done as a last resort. If you are worried about the well-being and safety of a loved one who has become incapacitated, consider these alternatives before deciding to petition for guardianship.
Power of attorney. When an individual sets up a power of attorney, they authorize a trusted agent to make health care, financial, or business decisions on their behalf. Unlike a guardianship, power of attorney does not require court action. However, in order for power of attorney to be a legitimate recourse, the incapacitated person typically would have had to set up a power of attorney in their estate plan before their incapacitation.
Trusts. Similarly, if the incapacitated person has set up a trust, the trust terms should provide for the successor trustee in the event of their incapacitation. After becoming incapacitated, care of property and affairs controlled under the trust will pass to the trustee. Again, for this to be an option, the incapacitated individual typically would have had to set up the trust beforehand.
Joint bank accounts. If the person who has become incapacitated shares a joint account with another, the other person on the account can manage the account to provide for their financial needs. This is a viable option if the other account holder is a trusted friend or family member, and willing and able to protect the incapacitated individual’s financial affairs.
Protective representative. A protective representative could offer a less restrictive alternative to guardianship for adults who are incapable of managing their own financial or health decisions. A protective represented can be named to manage the benefit payments from federal and state aid programs, social security, and other programs.
Social services. There are a variety of social service and volunteer programs available to help elderly adults with tasks such as paying bills, managing finances, cooking, cleaning, and caring for themselves. Generally, most volunteer and social service programs strive to protect their clients from abuse by performing criminal background checks and close supervision on their staff.
Whether you are considering these options while planning for your own future or the future of a loved one, it is important to consult with an attorney with experience in Florida guardianship administration. Your attorney can help you understand your options, and work to develop a plan that ensures you or your loved one’s finances, health, and happiness are protected. And if it does become necessary to set up a guardianship, your attorney can help you ensure the incapacitated person is provided for, and that the appointed guardian fulfills his or her legal, financial, and personal duties.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.