It can be hard watching a loved one getting older, and it can be especially hard making the decision that they need a guardian. Guardianship, also referred to as conservatorship, involves taking responsibility for a relative’s finances, living arrangements, and medical decisions when that relative is no longer capable of making those decisions on their own. Older adults with dementia or other cognitive impairments may need a legal guardian to help them get their affairs in order and avoid manipulation.
There are often alternatives to guardianship, such as power of attorney or an assisted living arrangement, and relatives should look at the feasibility of these options first. Florida has strict guardianship laws in place as a safeguard against elder exploitation, so the process of becoming a legal guardian can be long and challenging. However, there are some cases where there is no other reasonable alternative and claiming guardianship is in the elderly adult’s best interest. Let’s look at a few situations where this may be the case.
No Documents to Access Finances
In some cases, an elderly person who knows they may someday be mentally incapacitated will sign a durable power of attorney document. Power of attorney can be applied specifically to health care decisions, finances, or both. It’s essentially a legal document that designates another person to make decisions on behalf of the elderly individual, either effective once the document is signed or when the elderly person becomes incapacitated.
Unfortunately, if an elderly relative does not prepare a power of attorney document, their family will not be able to make important financial, legal, or medical decisions for them if they do become incapacitated. In this situation, a family member would need to become a legal guardian in order to manage their incapacitated relative’s affairs.
Vulnerability to Exploitation
Sadly, unscrupulous people often prey on elderly and cognitively impaired adults, and elderly victims of fraud collectively lose about $2.6 billion a year. It’s not just strangers who target the elderly, either – older adults may also be exploited by a fiduciary who has their durable power of attorney or a trust, especially if this fiduciary manipulated the elderly individual into giving them power of attorney when the person wasn’t mentally competent enough to do so.
If you believe that your elderly relative is losing their money to fraud or to an exploitative fiduciary, you may need to become their legal guardian in order to protect their finances. As a guardian, you can file a lawsuit against a fiduciary who is using your relative’s money for their own personal gain.
Refusal to Receive Appropriate Care
Many older adults reach a point where they find they are no longer able to live alone safely. For example, if they fall in their home or forget that they’ve left the stove on, this might be the wake-up call that convinces them to either seek in-home care or move into an assisted living facility. However, it can be hard for some people to admit that they need help, and if the elderly adult is suffering from a cognitive impairment, they may not even recognize that they need care.
Before seeking guardianship in this type of situation, you should sit down and talk to your relative about the kind of care they need. If they are cooperative and willing to move to an assisted living facility, there may be no need to become their guardian. On the other hand, if they refuse to get the appropriate care and are too incapacitated to make informed decisions, guardianship may be the only way to get them the help they need.
How to Become a Legal Guardian
In order to become the guardian of an elderly relative, you will need to file a petition and present your case to a Florida court. The court will appoint a three-person committee, typically consisting of two doctors and another expert, who can verify your elderly relative’s incapacity and need for a guardian. Your elderly relative will need to undergo three assessments:
- A physical examination
- A mental health examination
- A functional assessment
The committee will then decide whether the elderly person is truly incapacitated, and if they are not, your petition will be dismissed. If, however, the committee agrees with your assessment that your elderly relative is incapacitated, a guardian will be appointed, unless the court decides that there is a less restrictive alternative that can still adequately address the older adult’s incapacity.
This is just a brief overview of the process to become a legal guardian. In reality, the process of proving a loved one’s incapacity can be long and complex, and it may be in your best interest to work with a guardianship lawyer in Florida.
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.