by Estate Planning Attorney Nydia Menendez
When people hear the word “Guardianship”, they tend to think of someone taking care of a minor child. However, Guardianship also comes into play when someone over 18 years old is alive but does not have capacity to care for themselves or manage their affairs. The incapacitated person, who could be a minor, someone with special needs or a disability, or any person who has lost capacity, is the Ward. The person with responsibility and authority over the Ward is the Guardian. The Guardian could be an individual or institution appointed by the court. The judicial process of appointing and supervising the Guardian’s legal rights of the Ward is known as the Guardianship process.
The Court is in Control
Guardianship requires administration of the Ward’s person and/or property under the court’s supervision. This means that the court, not the Ward or the Guardian, is in control. To do this, the court will require periodic accounting (usually on an annual basis) and the court must approve all expenses, even though the funds are the property of the Ward.
Responsibilities of the Guardian
Serving as a Guardian is a huge responsibility, and Florida has very strict protocols which need to be met to preserve a Guardianship appointment. A Guardian must be represented by an attorney who will serve as “attorney of record.” Guardians, other than financial institutions and public Guardians, are usually required to furnish a bond and may be required to complete a court-approved training program.
The Clerk of the Court reviews all annual reports of Guardians and presents them to the court for approval. Guardians who do not properly carry out their responsibilities may be removed by the court.
What are the Different Types of Guardianships?
There are several forms of Guardianships. Some Guardianships are temporary, as would be the case for Guardianships of minors or persons who are temporarily incapacitated. Or, if the court finds the Ward partially incapacitated, it will appoint a limited Guardian to perform only those rights the Ward is incapable of exercising.
Managing Property Left to Children
In Florida, children under the age of 18 cannot own property which exceeds $15,000 in value. In such cases, the court must appoint a Guardian over that child’s property. This is one reason I always recommend establishing a trust for any type of gift or inheritance to minors. Doing so avoids Guardianship. The judicial process of Guardianship of minors ends when the child reaches the age of majority. At that time, any property that was being supervised by the court will be distributed to that child/adult, without further supervision – which I’m not sure is a good thing! Eighteen-year-olds and a sudden influx of significant assets often are not a good combination.
Creating Emergency Legal Documents
Whenever possible, Florida laws attempt to impose the least restrictive alternative to protect people who the law deems are incapable of caring for themselves and managing their financial affairs. This is why it is so important to create emergency legal documents such as advance health care directives, a durable power of attorney. Doing so could very well avoid the Guardianship process, leaving you in full control to handle your affairs privately.
How Can You Avoid Guardianship?
If you want to learn more about how to avoid the Guardianship process, we invite you to call our office at (954) 963-7220 to speak with a member of the Menéndez Law Firm who can help you navigate the process of creating a unique Estate Plan to meet your family’s needs. You may also want to watch the video series on our YouTube channel or join us for the next live Wills, Trusts and Estate Planning webinar on Zoom by registering at no charge on our website www.menendezlawfirm.com
Estate Planning Attorney
Menéndez Law Firm
2699 Stirling Road, Suite B200
Fort Lauderdale, FL 33312
Tel.: (954) 963-7220
Fax: (954) 963-7232