A serious car accident. A sudden illness. A debilitating injury.
These are all tragedies that could unexpectedly render you incapacitated or disabled. Unless you have set up durable power of attorney and medical directives before the incident, Florida courts may decide to appoint a guardian to make important decisions on your behalf.
This is a legal process known as guardianship that may come into effect when an individual is no longer capable of making decisions about his or her person or property. In this situation, a court-appointed guardian is given responsibility to make financial, medical, and personal decisions for the person, known as the ward.
Ideally, guardianships should be set up in a way that allows for as much independence and self-reliance for the ward as possible. Guardians are limited to as much decision-making powers as is reasonable in order to allow the ward to keep as much control over the affairs as possible. The dignity and personal desires of the ward should be prioritized.
In a proper guardianship arrangement, guardians should only have decision-making powers to do what the ward cannot accomplish on his or her own. Decision-making powers may vary from case to case, but can include:
Medical decisions. If the court determines that the ward is unable to make medical decisions for his or herself, the court may grant the guardian the legal right to make medical decisions for them. In such a case, the ward’s right to consent to medical treatment could be removed, as could their right to make end-of-life decisions. The guardian would have the responsibility to consent to and monitor medical treatments or make end-of-life decisions for them. The guardian could also be awarded the right to consent and release the ward’s confidential information.
Financial decisions. In some cases, a guardian may be awarded the power to make financial decisions for their ward. Responsibilities could include acting as a representative payee or making purchases, managing, or selling property.
Personal decisions. The court may award a guardian the power to determine and monitor the residence of his or her ward. The guardian may also have the responsibility to consent and manage education, counseling, and other non-medical services. In some cases, the ward may lose the right to make personal decisions such as the decision to marry, vote, own a firearm, file lawsuits, or possess a driver’s license.
In addition, the guardian typically will have a responsibility to submit reports on the ward’s condition to the court. In these reports, the guardian should include information on the ward’s physical and mental health, living situation, and financials. This information is meant to help the court determine the status of the ward and the extent of the guardian’s responsibilities.
Can Guardianship Be Avoided?
As you may have gathered, the guardianship system can be fairly restrictive. Guardianship should only be used as a last resort, when there is no other acceptable option and when forming a guardianship is in the ward’s best interest.
You can avoid the possibility falling into a restrictive guardianship after a potential incapacity or disability with smart estate planning. There are arrangements that can help you avoid the need for guardianship entirely, including:
Power of attorney. When you set up Power of Attorney, you allow a trusted individual to make important decisions on your behalf in the event of your incapacitation or disability. In the terms of this document, you could specify what types of decisions you want to authorize this agent to have. In addition to medical decisions, the power of attorney could give your agent financial responsibilities such as the ability to make bank transactions, sign checks, or apply for disability on your behalf.
Living will. In your living will, you can specify what types of treatments you would like in the event of your incapacitation. Your living will could include information on whether you desire life-sustaining services in certain situations, or medical treatments such as pain relief, antibiotics, artificial hydration or feeding, or life support equipment.
Health-care proxy. A health-care proxy is a legal document where you assign another individual to make medical decisions on your behalf if you are unable to make your wishes known. The person you designate as your health-care proxy will essentially have the same rights as you would have to request, consent to, or refuse medical treatments.
These documents can ensure that your care is placed in the hands of a person you trust in the event of your incapacitation or disability. If you are interested in setting up these highly beneficial documents, talk to an experienced Florida estate planning attorney. Your attorney can help you set up a plan that guarantees your wishes are honored and your well-being protected when you are most vulnerable.
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.