Explaining legal guardianship
In Florida, the term legal guardianship refers to a legal process wherein a court appoints an individual or entity to become responsible for managing the financial affairs and/or personal decisions of another adult who has been deemed incapable of handling such matters on their own. Under Florida law, adults 18 years of age or older may be deemed incapacitated due to a variety of physical, mental or behavioral disabilities and may need an appointed guardian to manage their affairs .
It is important to note that guardianship under Florida law is different than the broad term "guardianship" which is used somewhat generically to refer to any adult who is responsible for caring for a child or another adult. In fact, in Florida, when a parent is permitted to manage the affairs of his or her minor child, the parent is considered to have "custody" of the child, and custody is distinct from guardianship. In contrast, the authority of a court-appointed legal guardian is extensive, and it is not an authority that should be undertaken lightly or without careful deliberation and planning.
The legal process of guardianship
The legal process of obtaining guardianship of an adult with disabilities in the state of Florida is multi-phased, requiring extensive documentation to properly file a petition to the court. This section outlines the requirements and the step-by-step process to legally obtain permanent guardianship.
To begin, a Petition for Appointment of Guardian must be filed in circuit court that has jurisdiction over the county in which the alleged incapacitated person resides. In cases where the subject of the guardianship petition is a minor, the petition must be filed in the circuit court in the county in which the minor resides.
As part of the petition, a Verified Statement of the person proposing to be guardian must be filed. This statement:
- discloses if the proposed guardian is related to the presumed incapacitated person;
- identifies any relatives of the proposed guardian;
- discloses the proposed guardian’s relationship to the incapacitated person;
- includes a statement of the proposed guardian’s skill or experience with providing services for disabled persons; and
- includes any factors that would limit the proposed guardian’s ability to serve in the proposed capacity.
Within the petition, a current physical and mental examination as well as a functional assessment of the incapacitated person must be included. Once the petition is filed, the court will appoint a three-member examining committee to evaluate the proposed wards ability to care for himself or herself. The court-appointed members include:
- a physician;
- a psychologist; and
- either a licensed nurse or a geriatric care manager.
The examining committee reviews the petition and certification and reports its findings to the court. The recommendations of the committee, duty considering all the factors and specific needs of the individual with a disability, become the basis of the court’s update of guardianship.
Different types of Florida guardianships
Plenary guardianship is the most restrictive and removes all legal rights from the adult with disabilities. In the order for plenary guardianship, a guardian is appointed with the guardian being required to get the approval of the court before they can enter a binding contract on behalf of the person with disabilities or move the person from the residence they have known for 60 days or more. The court can also require the guardian to get their approval before making the decisions that fall within the scope of the rights which the court can be requested to assist the adult with disabilities in exercising. By having the approval of the court, the adult with disabilities is provided with certain levels of protection in the form of scrutiny and the ability to avoid capacity arguments. For instance, if the guardian does not seek court approval before taking actions concerning the affairs of the person with disabilities, the person can seek a remedy from the court for the improper action of the guardian. In this way, the court can protect the person with disabilities and ensure the guardian is performing their responsibilities in a competent manner. Court approval for the actions of the guardian offers a safeguard to the adult with disabilities, however the guardian also has certain protections with the court approval requirement. A guardian who obtains court approval can avoid later arguments regarding the legal capacity of the person with disabilities to enter into the transaction. In other words, even if the person did not sign a contract or did so under undue influence or duress, if the contract is for a transaction where the guardian sought court approval the court will find that the person had the legal capacity to enter the contract. Limited guardianship, on the other hand, retains the legal rights of the adult with disabilities and only limits those rights which have been identified by the court as requiring assistance from the guardian. The rights of the adult with disabilities which should be limited in scope are: Even within the scope of limited rights, there can be broad limitations. However, the goal of limited guardianship is to maintain the autonomy of the person with disabilities whereas plenary guardianships remove the autonomy. Having a limited guardianship does not mean that the guardian must obtain court approval to act on behalf of the adult with disabilities as they do with a plenary guardianship. Instead, the limited guardian will act at their own discretion within the limitations imposed by the court and that decision will be free from the attack of the person with disabilities.
Obligations and rights as a guardian
One of the crucial elements in the legal guardianship of adults with disabilities is the specificity with which the legislature has defined the powers and responsibilities of the Guardian. Appointing a legal guardian strips an individual of some of their legal rights and gives these rights to the individual chosen to act as the legal guardian. Because of this, the following responsibilities and powers are delineated in stark, explicit language to and for the benefit of the incapacitated individual and the legal guardian. Upon appointment as Guardian, the Guardian has the power and responsibility to: (1) obtain relevant information regarding the individual’s physical health or mental health and the appropriateness of the individual’s dwelling facility; (2) obtain relevant information pertaining to the individual’s financial affairs; (3) receive and secure the person and his or her property; and (4) apply general duties of care and management of the person and the property including the following: 1) Take possession of the property of the person; 2) Explain to the person any notice, instrument, deed, or other writing which the Guardian is to execute on behalf of the person; 3) Perform any and all acts with respect to the person and the person’s property which a single adult can perform; 4) Place the person in community settings, facilities with appropriate treatment and care, or with a competent person; 5) Establish and maintain good personal and social relationships with individuals and responsible groups which are likely to benefit the person and encourage the person’s abilities; 6) Consult with and act in the best interest of the person about the possibility of marriage, divorce, and alternate lifestyles and living arrangements; 7) Assist the person and the individual’s family in maintaining and developing family relationships; 8) Supervise and arrange service and care for the person and the person’s property; 9) Maintain the person’s skin integrity, posture, and mobility, and provide correct eyeglasses, contact lenses, hearing aids, dentures, and other prosthetic appliances; 10) Provide for the ward’s psycho-social, physical, rehabilitative, and general health needs and welfare, including nutrition, clothing, hygiene, and health care needs including home care, day care, institutionalization, and palliative care; 11) Initiate and maintain medically necessary and appropriate medical therapies; 12) See that the person’s place of residence is safe, healthful, and reasonably accessible, including accessibility to any necessary transportation of the person; 13) Implement recommendations of qualified professionals in providing or arranging for services and training so as to promote the well-being of the person and the person’s ability to function independently; 14) Assist the person in developing futher skills and self-advocacy through ongoing education, employment, vocational training, and volunteer activities; 15) In the case of a person who is a minor, provide all necessary consent for the person’;s education and special education; and 16) Exercise all other powers granted under the person’s birth certificate or other lawful authority. The Guardian is also required to coordinate, establish and maintain relationship with the person and all persons in the person’s life, including family members.
Problems and possible issues
While legal guardianship can provide a sense of security to families of adults with disabilities, the role of a guardian is not without challenges. Many guardians live outside the state of Florida, but nonetheless serve as guardians for their loved ones in Florida. Whether the guardian resides across the state line or across town, they must have a strong commitment to their responsibilities as guardian and the time to fulfill all obligations.
Legal guardians can expect to spend several hours a week managing their loved one’s care, attending medical appointments, meeting with caregivers, attending court hearings, attending training, preparing accountings, and dealing with insurances. A guardian must also remain fully informed on their loved one’s needs and be prepared to make the best decisions possible in their best interests. Each situation is unique, and the time required will vary with each individual and their circumstances. For individuals who cannot travel to Florida regularly, a professional guardian may be a better option. Be sure to check the qualifications of any guardian you hire (or are considering hiring) and select someone you trust to be their advocate.
Adapting to the responsibilities of guardian is not only time consuming , but costly. Legal services, medical bills, equipment and modifications, and other expenses should all be considered in assessing whether one is prepared to take on the responsibility of guardianship. While there may be assistance available to help offset some costs, such as public benefits or Medicaid waivers, family members should be prepared to spend their own funds if necessary. While there are ways to seek court reimbursement for some guardianship expenses, such as attorney’s fees or travel costs, there are no options for reimbursement for personal funds spent on housing or clothing. Guardians may also receive a nominal annual fee and are eligible for specific Medicaid Waiver slots, but the financial rewards of guardianship are minimal.
Taking on the added responsibilities of guardianship does not eliminate the emotional challenges many experience when a family member or loved one is diagnosed with a disability. Many issues such as the loss of capacity or competency, the need for residential placement, and coordinating benefits and care can be emotional issues for families. Finding the right balance between exercising your rights as a guardian and dealing with the emotional issues of having a loved one with a disability can be particularly challenging.
Alternatives to legal guardianship
Alternatives to Legal Guardianship
While legal guardianship is one way to ensure that a disabled person has someone looking out for them in the event of incapacity, it is not the only way. In fact, guardianship, at least for adults, can be overkill.
There are other ways to plan ahead for disability. Sometimes a less restrictive way of planning for disability is all that’s needed. Even better, in many cases there is a less restrictive means of planning that’s preferable to guardianship.
Power of Attorney
One common way to plan for disability is to use a durable power of attorney. A financial power of attorney can allow for the appointment of someone else to manage your assets and finances in the event of your incapacity.
Durable powers of attorney will not, however, allow for someone else to make health care decisions on your behalf or to control government benefits.
Supported Decision Making
Another good option for planning around disability is to use a supported decision making agreement. This type of agreement allows you to continue to control your own affairs with the help of others.
With supported decision making, you don’t need an agent to act for you. Instead, people step in to help you understand the decisions that you have to make, navigate the process of making them, and connect you with the resources that you need to make those decisions.
Not for Everybody – Remember that these alternatives aren’t for everybody, or even for most people who come through my door seeking as straightforward a solution to disability as possible. Some people really do need a legal guardian, and they don’t want anything less restrictive than that.
But if you’re looking for a less restrictive alternative to legal guardianship, a power of attorney and a supported decision making agreement could be good alternatives.
Legal and community contacts
Legal aid and community resources available in Florida can help legally assist guardians and their families
Numerous legal aid and community resources are available to help legally assist guardians and their families. For legal assistance, guardians can contact the Legal Aid Society of Palm Beach County Inc., primarily handles legal issues relating to guardianship at (561) 655-8944. Florida Legal Services can provide referrals for free or low-cost lawyers who specialize in guardianship. The Florida Bar Association offers a variety of resources for guardians which include its "Guide for Guardians" and its "Guide for Families of Guardians," both of which are helpful resources for those in Florida.
Various government agencies also provide community services that help assist guardians and their families. These services are available through the Agency for Persons with Disabilities (APD), which administers and provides services and support to citizens with developmental disabilities. There are 11 district offices of APD throughout Florida. Each facilitates services in areas such as supports coordination, waiver services, respite care, independent support coordination, consumer-directed care plus program and family supports . Community services offered by APD include early intervention services for children from birth until age three who have developmental delays, or are at risk for these delays. The state of Florida also helps provide services to homeless people or people at risk of becoming homeless. Resources and support are offered through the Florida Department of Children and Families (DCF). Florida’s Aging Network brings together agencies and organizations that serve seniors and people with disabilities. It also provides information and services encompassing meals, transportation, Alzheimer’s support, caregiver support, homeowner assistance, in-home health care, nursing home information, disaster planning, insurance counseling, recreational activities and more. Additional community resources that provide valuable support include the Florida Department of Elder Affairs, Alzheimer’s Association, Alzheimer’s Community Care, Area Agency on Aging, The Arc of Palm Beach County, Inc., United Cerebral Palsy Association and the United Way of Palm Beach County.