We often meet with clients who are concerned about an elderly relative, like a parent or grandparent. They might worry that this relative shouldn’t be living alone, could be taken advantage of, or might not be able to manage their finances.
Frequently, family members want to help in this situation, but they aren’t sure how. Fortunately, an estate planning lawyer can provide guidance in these challenging situations. One option we might discuss, depending on the situation, is legal guardianship.
What Guardianship Means in Florida
If an adult is unable to manage their own affairs due to physical or mental health issues, the court may appoint a guardian to make decisions for them. This is more common with older adults, as they are more likely to develop dementia or other serious conditions that impair their ability to make decisions. However, a severe illness or injury can happen to anyone at any time.
It’s important to understand that not everyone with dementia or another serious condition needs a guardian. The state of Florida has several rules for determining if guardianship is necessary:
- The court must find that the person’s ability to make decisions is so impaired by their condition that it’s necessary to appoint a guardian. In general, this means that they lack the capacity to manage at least some of their property, or to handle at least some health and safety requirements.
- Less restrictive options must be considered first; only if these are not available will the court move forward with guardianship.
- There are two forms of guardianship: limited and plenary. Limited guardianship may be appropriate if the person is unable to handle some but not all necessary tasks. Plenary guardianship gives the guardian broad authority to manage the legal rights and powers of the person under guardianship.
When is guardianship needed in Florida? Warning Signs Families Should Watch For
People often ask us questions about elder law, guardianship, and related issues. Common concerns include:
“When is guardianship needed in Florida?”
“How do I know if my parent is no longer able to make decisions?”
“If my mom or dad is becoming forgetful, does that mean they are incapacitated?”
We understand how confusing it can be to navigate the aging process and the potential for a loved one to suffer memory or cognitive challenges. If you have similar concerns, there are important warning signs that your loved one is struggling to manage on their own and may need support. Keep an eye out for these signs that guardianship may be needed:
- Trouble paying bills. If your loved one has forgotten to pay important bills or had utilities turned off, they may need some help.
- Spending changes. Sometimes, falling for scams or giving away large amounts of money can be a sign a family member isn’t thinking clearly, especially if this behavior is out of character.
- Struggling with basic financial tasks. When a loved one can no longer balance a checkbook, use an ATM, or do simple calculations, they might need support.
- Disorientation or confusion. If your family member starts getting lost in familiar places, can’t remember the date or season, or is frequently confused about things they already know, it may be time for a cognitive exam.
- Medication mistakes. Errors can happen, but mixing up medications or forgetting to take them can be a safety concern, especially if it occurs more than once.
- Inability to keep up with housework. If your family member’s home is uncharacteristically messy with spilled food or unaddressed household repairs, they might need assistance.
- Changes in judgment. It’s concerning if a loved one drives erratically, wears clothing that isn’t appropriate for the season, or becomes abnormally combative in interactions with others.
If you notice any of these signs, suggesting a medical exam to check on your family member’s health may be a good idea. Let your loved one know you’re concerned about their health and want to make sure they’re okay.
Why Guardianship Is a Serious Legal Step
When the court decides that an adult needs a guardian, they essentially remove some or all of that person’s rights and give these powers to someone else. In many cases, it is necessary to keep the person safe and healthy. Still, it isn’t a step that the court takes lightly.
For this reason, your application for guardianship is only the first step. Next, the court will appoint a three-member examining committee to determine if the alleged incapacitated person (AIP) is incapacitated or unable to make their own decisions. This committee usually contains a combination of mental and physical health experts and social workers.
Later, the court will hold another hearing based on the committee’s report. If the AIP is found to be incapacitated, the court will consider other, less restrictive options than guardianship. If these are not available or appropriate, the court may decide to establish a guardianship. The judge can declare a guardian of the property (mostly for financial decisions), a guardian of the person (for medical and personal decisions), or both.
Planning Documents That May Reduce Court Involvement
The guardianship process can take weeks, and it involves court costs that may be challenging for many budgets. For this reason, we encourage clients to take steps to avoid the Florida guardianship process while they are still able to do so.
Here are some documents you or your loved one should consider when working on an estate plan to avoid the need for guardianship:
- Durable power of attorney. This document allows an agent you select to make decisions in a broad or limited fashion if and when you are unable to do so.
- Healthcare surrogate. If you have concerns about what might happen if you are too ill to make medical decisions, you can choose a healthcare surrogate to make these choices for you.
- Living will. In this document, you can spell out what types of medical and end-of-life care you do or don’t wish to have. It serves as a helpful guide for the healthcare surrogate.
What Families Should Do Before Filing for Guardianship
First, try to convince your loved one to see a doctor if they don’t already have a diagnosis. Sometimes memory and cognition issues in older adults can be a sign of a serious condition like dementia. But in other cases, they may be caused by less serious, treatable conditions, such as a medication side effect or an infection.
Once you better understand the cause of their symptoms, speak with a Florida guardianship attorney right away. Starting the conversation early can also make estate planning decisions easier. Learn more about estate planning conversations with aging parents before a crisis occurs. If there are other alternatives, we’ll do our best to help you explore them. For example, if your loved one is in the early stages of dementia, but is not incapacitated yet, they can sign some of the documents mentioned above to ensure they have a plan in place. When guardianship is the best solution, we’ll walk you through the process and assist you every step of the way.
How a Guardianship Attorney Can Help
If you or a loved one is struggling with a serious diagnosis, or your family member needs care but is unable to make decisions, contact a guardianship lawyer in Boca Raton right away. We’ll learn about your situation, explain your options, and answer your questions. Once you’ve decided how to move forward, we will assist you by drafting documents, filing paperwork, and keeping you up to date as we move forward.
Speak with a Florida Guardianship Attorney
If you are worried about a loved one’s ability to make decisions, speak with a guardianship attorney before taking the next step. At the Law Offices of Rina Feld, we offer free 15-minute phone consultations about adult guardianship in Florida and other estate planning concerns.