Law Offices of James W. Mallonee, P.A.
Port Charlotte 941-206-2223
Venice 941-207-2223
Helping individuals & families across Florida with their legal matters since 2005

Avoiding Guardianship

Consider the following situation, your parent is elderly and you begin to notice that he or she is beginning to become confused and failing to manage their hygiene. You also notice that he or she is beginning to have difficulty with their vision and their physical movements are substantially slowed. You are aware that your parent has the following testamentary documents: Revocable trust; Pour-over Will; Durable Power of Attorney; Healthcare Surrogate; and Living Will. You also know that you are the named delegate in the Durable Power of Attorney, Healthcare Surrogate and Living Will. You have considered moving to the Charlotte County area to assist your parent but unfortunately you are building your own career and are unable to leave your Salt Lake City, Utah, corporate job. You’ve spoken to your other brothers and sisters, but none are able to provide much assistance, except for a local nephew who has befriended your parent but your understanding is that the nephew is allegedly irresponsible and an illegal drug user. The question that faces most persons in this situation is “what are my options?”

Surprisingly, you have many, provided your parent is willing to cooperate and listen to your suggestions and then agree to act upon them.

Florida’s Guardianship Laws provide that no removal of ones rights may be implemented on an individual if there are alternatives available to prevent such loss of rights. In the situation given above, one of the least restrictive alternatives to the loss of a right is the Trust. Generally speaking, if a parent has a trust that is funded, the parent’s vulnerability to having their property taken from them can be protected by the appointment of a successor trustee. The successor trustee takes control of the property making it virtually impossible for the parent to convey property to others who do not have the parent’s best interest at heart. This assumes of course that the successor trustee is given the same powers as the parent. Most trust documents provide a mechanism for succession of trustees which may include certification by a physician of the parents incompetence to resignation by the parent as trustee. If you become the successor trustee, there may be no real need to have a guardian of the property since the argument to the court will be that the parent no longer has control of the any property.

In addition, any property that is not titled in the name of the trust can be controlled by the delegate named in the parent’s Durable Power of Attorney. The delegate is known as the Attorney-in-Fact, who will possess the same powers as the parent regarding the management of the parent’s property. Once again, this assumes that the Durable Power of Attorney provides an unlimited spectrum of power to the Attorney-in-Fact as opposed to providing limited powers. As a result of having the Durable Power of Attorney in place, the argument to the court becomes that the property is being managed by the Attorney-in-Fact which is an alternative to the need for a guardianship.

Although a successor trustee and Attorney-in-Fact are in place, there is always the danger that the person acting in that role is not well suited for such role. When this occurs, it is highly suggested that a court proceeding be held to accomplish two things: 1) removal of the successor trustee with someone who is better suited; and, 2) begin a guardianship proceeding to prevent miss-use of the Durable Power of Attorney by the Attorney-in-Fact. Alternatively, you should have your parent revoke the Durable Power of Attorney if there is any concern that the Attorney-in-Fact is misusing the powers granted him or her. Remember that an Attorney-in-Fact may have the power to wipe out a parent’s property that is not titled in the name of the trust. Of course there are fiduciary responsibilities that are attached to the Attorney-in-Fact’s acts, but if the parent’s entire savings is spent, the implied fiduciary duty may not be very comforting when the spent savings cannot be recovered. A Durable Power of Attorney is a very powerful document and should not be taken lightly. When a guardianship proceeding is filed, any Durable Power of Attorney signed by the parent and in force is revoked.

If your parent also has a Healthcare Surrogate in place, the combination of it with a Durable Power of Attorney and Trust make the likelihood of a successful guardianship proceeding against the parent almost impossible. The reason for this is that the property is protected by the trust and the management of the parents health decisions is also under control by the appointment of the Healthcare Surrogate. Once again this assumes that the powers of the Healthcare Surrogate provide the delegate with a full spectrum of powers to manage the health decisions for the parent.

Another alternative that is available is a voluntary guardianship. This form of guardianship does not require the adjudication of incapacity, but does require the parent to obtain from a licensed physician a document specifying that he or she has examined your parent and that the parent is competent to understand the nature of the guardianship and his or her delegation of authority. Voluntary guardianships are limited to the property of a ward and may be terminated by the ward through the filing of a notice with the court that the voluntary guardianship is terminated.

Suppose the parent possesses none of the testamentary documents mentioned, in that case, a guardianship proceeding is likely your only option in the event the parent is incapable of understanding events taking place around them.

If you elect to invoke a guardianship proceeding, your next issue will be who should be the appointed guardian. Remember that the guardian will step into the shoes of the parent and may be granted all of the powers, rights and control over the property and person of the parent. The difference between a guardian, Attorney-in-Fact and Trustee is that a guardian will be answerable to the Court and possibly have to provide a bond (insurance policy) that will garner some protection against mismanagement of the parent’s property.

So who eligible to serve as a guardian? The Florida Guardianship laws provide that any resident of the State of Florida who is over 18 and is not under any legal disability may serve along with the following:

  • A nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state, provided that if the organization charges a fee for their services against the property of the proposed ward, it must have in its employ at least one professional guardian; or,
  • A trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state.

An out of state person is qualified provided they are:

  • Related by lineal consanguinity to the ward;
  • A legally adopted child or adoptive parent of the ward;
  • A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or
  • The spouse of a person stated in a, b or c above;

Individuals who cannot serve as a guardian are:

  • Persons who have been convicted of a felony;
  • Persons who, due to any incapacity or illness, is incapable of discharging the duties of a guardian;
  • Persons who are unsuitable to perform the duties of a guardian;
  • Persons who have been judicially determined to have committed abuse, abandonment, or neglect against a child;
  • Persons who have been found guilty or entered a plea of nolo contendere or guilty to, any offense prohibited under ยง435.03 Florida Statutes or under any similar statute of another jurisdiction
  • Persons who provide substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward;
  • Persons who are in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward’s best interest;
  • Persons who provide health care services to the ward unless the court specifically finds that there is no conflict of interest with the proposed ward (e.g. a lineal descendant);
  • Persons where the court determines that a conflict of interest may occur.

In addition, the court will take into consideration the desires of the Ward as to who they would like appointed as a guardian, however, such desires will not override those persons who by statute are prevented from serving.

If you meet the above requirements for serving as guardian for your parent, then your only other concern will be if some other person who meets the requirements for serving petitions the Court to serve as guardian of your parent. When this occurs, you will need to demonstrate to the court why you are better suited for the position than the other applicant. In many cases where the court is concerned about multiple members of a family who have petitioned to serve as the guardian; and, those persons are making accusations against each other, the court on its own volition may appoint an independent third party (a professional guardian) to serve. The court is very concerned about what is best for the ward and if it suspects that appointing a family member may cause disharmony for the ward, it will not hesitate to invoke its discretion to appoint an independent party.

As you can see, there are options available to prevent the intervention of a guardianship provided that certain testamentary documents are in place. If those documents are not in place, then, it is likely that guardianship will be the only remaining option to protect the interests of your parent.

Next week we’ll discover the duties of Guardian which may make you leery of wanting to serve in such capacity.

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