What You Should Know Before Agreeing to Serve as a Legal Guardian

One of the largest shifts a person makes as he/she transitions to adulthood is learning how to make decisions without the guiding hand of a parent. Once fully learned, though, this autonomy provides freedom of choice and movement, and the authority needed to generate sufficient financial support. However, as individuals enter the last years of their life, a noticeable number face cognitive and physical disabilities that render them unable to manage their life. In these situations, guardians are often necessary to ensure the person receives appropriate care and proper supervision of his/her business/financial holdings. Designating someone to fill this role before a disability arises is an important and prudent part of an estate plan, but equally important is whether the individual selected as guardian fully understands what this responsibility entails so he/she can determine if taking on this duty is feasible. Thus, informing the person selected as a potential guardian before drafting the legal documents is a good idea, as well as naming alternates in case the first preference is unable to serve in this capacity.

What Is a Guardianship?

A guardianship is a legal proceeding in which a court appoints someone to act as a surrogate decision-maker, i.e., guardian, for a person determined to be incapacitated. Thus, a finding of incapacity by a judge is a prerequisite to appointing a guardian, and incapacity exists when a person is unable to manage his/her business affairs, or to perform critical personal or medical needs. As noted above, an individual can designate a guardian before one is required, referred to as a preneed guardian, but the selected person must still receive court approval before he/she has the authority to act on behalf of an incapacitated person. Assuming there are no grounds for rejecting an individual, all a Florida resident needs to qualify as a guardian is to be at least 18 years old. Non-resident guardians must be legally or biologically related to the incapacitated person. Practically speaking, if a preneed guardian is named, the court will almost always approve the appointment unless there is an obvious reason to disqualify an individual, such as a mental or physical condition that hinders the individual’s ability to serve in this role.

Powers of a Guardian

There are two types of guardians – those that manage property and those who manage someone’s care. A guardian over property is responsible for keeping an accounting of a person’s business/financial affairs, including collecting income, making reasonable investment choices, and financially supporting the person. A guardian over a person is obligated to oversee a person’s medical care, personal needs, and living situation. The authority granted to a guardian is determined by the court, which means the guardian may receive authority over just property, just the person, or full or partial authority in either area. The determining factor in the grant of authority is the extent of a person’s incapacity. Thus, if the person only needs someone for certain issues, these are the only issues a guardian can manage.

The guardian is mandated to perform his/her duties conscientiously and prudently, and is obligated to submit annual reports to the court on actions taken in the person’s interest over the previous 12 months. A court will remove a guardian for cause if he/she fails to perform his/her duties or otherwise abuses this position of authority.

Guardians are not necessarily permanent. If an individual regains partial or full capacity, a petition can be filed requesting the court restore certain or all rights previously removed.

Consult an Estate Planning Attorney

If you have questions or concerns about designating or serving as a guardian, talk to an estate planning attorney to learn about your legal rights and responsibilities. Serving as someone’s guardian is not a small task, and should be undertaken only if you are willing and able to meet the legal demands. The Tampa law firm of Bubley & Bubley, P.A. handles a variety of estate planning matters, including guardianships, and can guide you through this highly-regulated area. Contact us for a free consultation.

Resources:

floridabar.org/tfb/TFBConsum.nsf/48e76203493b82ad852567090070c9b9/e8fd739d221b11c085256b2f006c5a4e

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0744/Sections/0744.3045.html