A guardianship is usually the last resort, as it relates to helping an incapacitated person. Guardianship is not looked upon favorably by all but is used as a last resort proceeding if none of the alternative measures are available to meet the needs of and to protect the incapacitated person. Alternatives to guardianships can include joint bank accounts, a durable power of attorney, a living trust, a designated healthcare surrogate, and other legal arrangements.
If the primary owner of a joint bank account is incapacitated, the other owner can still access the account and pay the incapacitated owner’s bills. They don’t need a guardianship to do this. An effectively written durable power of attorney in Florida should delegate all abilities of the incapacitated person and give ability to a specific person to conduct all financial transactions. The person signing the power of attorney is not giving away his or her rights. He or she can continue to conduct business as usual. A durable power of attorney is just allowing someone else to also act on your behalf. That can avoid guardianship in most instances.
A living trust, set up with the help of an attorney, will avoid guardianship of property. The living trust will have a trustee named in the documents, in the instance that the creator is incapacitated. However, a living trust only controls financial situations. It does not control medical situations. If someone is denying medical treatment and denying assistance with activities of daily living, such as eating and showering, the living trust is not going to help get this person the care and medical treatment they need. A designation of healthcare surrogate avoids the guardianship of a person, in most instances, because it designates someone to make healthcare decisions on behalf of an incapacitated person.
If the judge finds that these alternatives to guardianships do not meet the specific needs of the incapacitated person, then a guardian is going to be appointed to protect the ward.
Can An Incapacitated Person Agree To A Guardianship?
A voluntary guardianship is not possible for a person who is incapacitated. It is an option, however, for a person who is mentally capable but is not physically capable of going around and doing day to day financial business. A voluntary guardianship is most commonly used when there is not a close family member near the person who needs assistance with finances.
Another important point in guardianship is considering a standby guardianship. A standby guardianship is used when there is already an existing guardianship established. It enables the current guardian to name someone to take over when they are no longer able to continue as guardian. This is an important tool that can be used to avoid any kind of fights over who is taking care of a loved one if the guardian passes away.
For more information on Guardianship For Incapacitated People, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.
Author Bio
Kellen Bryant, Esq.
Founder
Florida Bar Board Certified Elder Law Attorney, Kellen Bryant focuses his law practice on advising and helping caregivers with a particular focus on asset protection and preservation from long-term care costs, creditors, and predators. Kellen Bryant is AV Preeminent® Rated, meaning his attorney peers rated him at the highest level of professional excellence. Kellen Bryant was nominated and selected as a Super Lawyer, Rising Star: 2022.
