If you have a parent with dementia or Alzheimer’s in the state of Florida, one of the most important decisions you may need to make is whether or not to take legal guardianship of him or her. When your parent reaches the point where he or she is unable to make decisions and could potentially be dangerous to himself/herself, it is probably time for you to consider filing for legal guardianship.
What Is Guardianship?
Depending on where you look, you may see adult guardianship referred to as “conservatorship.” These two terms mean essentially the same thing and are usually interchangeable. The Florida Bar uses the term “guardianship” and defines guardians as those who are able to “exercise the legal rights of an incapacitated person.”
As the legal guardian of your parent, you would be responsible for making all legal decisions for him or her. Your duties may include:
• Determining the best place of residence for your parent,
• Providing medical and personal care, and
• Ensuring that your parent is not being exploited in any way.
Obtaining guardianship over a parent is not an easy process, nor is it an easy responsibility to be tasked with. In certain circumstances, however, acting as the legal guardian of your parent may be necessary to ensure his or her well being.
When to Seek Guardianship
The objective of guardianship is to ensure that your parent has someone to make rational, informed decisions for them when they are unable to do so. If left alone, persons with dementia or Alzheimer’s could get themselves into some sticky legal situations. For instance, adults with Alzheimer’s are at risk of financial exploitation or falling behind on their bills and taxes, both of which could be dangerous for them.
However, there’s more to guardianship than finances and taxes. What if your mother or father repeatedly leaves the stove turned on or goes wandering alone outside? This could put him or her in very dangerous situations. Sometimes, parents will recognize the danger here and will be able to rationally discuss their options with you. If, however, your parent is unable to have rational conversations about things such as residential facilities or treatment options, it may be time for you to consider seeking legal guardianship.
It’s worth noting that the process of obtaining guardianship will be much smoother if you and your parent have this conversation before the dementia or Alzheimer’s becomes too advanced. However, if you have already missed that window, the next best option is to begin the proceedings as soon as possible. Because the entire process can take months, you don’t want to put it off for too long.
If your parent is exhibiting behaviors that worry you or if you believe your parent to be unable to take care of their own legal, financial, or personal matters, it may be time to consider filing for guardianship.
Unfortunately, the process of obtaining guardianship over a parent is far from simple. Legal petitions, lawyers (for both you and your parent), and court hearings are all necessary parts of the process. Usually, it takes approximately 30 days to get to a court hearing. While this may seem daunting, this process is set up to ensure the safety and dignity of adults. These cases require time and thoughtfulness, both of which are necessary for ensuring that no adult falls victim to fraud or exploitation.
If you decide to seek legal guardianship of your parent, the process will consist of three general parts (as outlined in Florida’s “Guardianship Basics” handbook):
1. A petition is filed
If you’re ready to take guardianship over your parent, you will first need to file a petition with the court to request that they examine your parent’s incapacity. The court will appoint a three-member examination committee that will evaluate your parent and report back to the court.
2. A hearing is held
Once the examination committee presents its report, a hearing will be held to review the findings. If the court agrees with your claim of your parent’s incapacitation and further agrees that there is no better way of handling the situation (i.e., avoiding guardianship), a guardian will be appointed.
3. A guardian is appointed
If the court decides that your parent does, in fact, require a guardian, guardianship will be granted. Depending on the circumstances, the court may appoint a guardian of the person, a guardian of the property, or a guardian of both (which could either be the same person or two different people).
After You Become a Guardian
Even once you are granted guardianship of your parent, the process is still not over. Newly appointed guardians must complete a training course within four months of their appointment. Guardians must also present an official “Initial Plan” to the court, as well as various other reports annually, including annual plans and perhaps initial accounting and annual accounting documents.
Applying for—and receiving—guardianship can be a complicated process, but it may also be necessary to ensure the safety of your parent. Because the process is so extensive and involved, you will want the help of an experienced guardianship lawyer on your side. If you’re ready to proceed with seeking guardianship of your parent or if you would like to learn more about the process, set up an appointment to meet with a qualified Florida guardianship lawyer at Wintter & Associates, P.A.
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.