Editor’s Note: This is part of a series of columns that will be presented in this newsletter by Sam W. Boone, Jr., a local attorney whose primary practice areas include elder law, estate planning, probate and trust administration. It is hoped that the information will be valuable for caregivers and family members dealing with issues related to elder law.
In the last several months there has been much media attention placed on an occasional problems in Florida and elsewhere with guardianship proceedings and the possible exploitation of incapacitated wards.
Under Florida law the court appoints a guardian when it has been determined that a person no longer has the capacity to manage their own affairs and/or property. The guardian is an individual or institution appointed by the court to care for the incapacitated person or her property under the supervision of the court. A guardian can be a family member, a professional guardian, a bank trust department or a nonprofit corporation. Ideally a family member who has the best interests of the incapacitated person at heart is the best choice but that is not always an option.
A series of articles originally published in the Sarasota Herald Tribune – parts or all of which were reprinted in several media outlets including The Gainesville Sun – pointed out the system can sometimes result in exploitation of our elderly population. These articles have suggested there may be conflicts of interest among judges, attorneys, guardians, health care providers and other business people who work closely together within the guardianship system. The worst of these examples of exploitation included failing to notify the next of kin of legal proceedings, financial exploitation, poor legal representation, poor guardian performance and misrepresentation of the facts.
What the articles fail to acknowledge is that guardianship is often the only appropriate mechanism available to protect an incapacitated person from abuse, exploitation and neglect be it by third person or family members. In the majority of the cases reported on in the articles, those complaining about the system were family members who were more concerned with their parents’ money or with sibling rivalry.
Guardians are appointed by the courts after a background check and a review of a comprehensive application filed with the court. Guardians must post a bond or hold a ward’s funds in a bank account which can be accessed only by order of the court. The guardian must file annual reports, including a report from an examining physician, as well as annual accountings.
While a court may appoint any person who is fit and proper and qualified to act as guardian, family members have statutory priority to be appointed as guardians. The court must appoint any standby guardian or preneed guardian nominated by the incapacited person unless the court determines that appointing such person is contrary to the best interests of the ward. You may want to include a designation of pre-need guardian as a part of your estate planning. That way you can be sure that the court is aware of your preferences and must consider your preferences.
Under the Florida Guardianship law a guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person. A Durable Power of Attorney, a Revocable or Irrevocable Trust Agreement, and a validly executed Health Care Advance Directive will generally be considered as least restrictive alternatives to a plenary guardian of the person and property.
There’s no question that the best solution for the safety, care and financial security of our seniors is to be surrounded by a loving and responsible family for as long as possible. But when that alternative is not available, we have to look at our guardianship system. For the most part, this system works. However we have to remain vigilant and continue to do whatever is necessary to make sure that continues. Guardianship is a vital piece of the system we have in place to protect Florida’s seniors.
Sam W. Boone, Jr. is a Gainesville-based attorney practicing elder law and estate planning. He is past-president of the Academy of Florida Elder Law Attorneys. To learn more about elder-law issues, go online to www. http://boonelaw.com, or call (352)-374-8308.