As the names indicate, a family guardian is usually a member of the family or a close friend of the person with incapacity. A professional guardian is a fiduciary who cares for 3 or more wards and is subjected to a Federal Bureau of Investigation (FBI) fingerprint background check, Florida Department of Law Enforcement (FDLE) background check, credit check, and an extensive 40-hour training course.
The court will first look to the possibility of a family guardian. A professional guardian is very useful when the ward has no family available or willing to become a guardian. Likewise, a professional guardian can step in when guardianship is contested, and family members cannot agree who should be a guardian.
How is the level of Guardianship determined?
In general, there are 2 types of adult guardianship in Florida: limited and plenary. Limited guardianships permit the guardian to make only certain decisions on behalf of the ward. For example, a person who has the capacity, but failing eyesight, may need assistance writing checks and managing their money. In addition, you can be a limited guardian of the person, or a limited guardian of the property, depending on the individual circumstances.
Plenary (or full) guardians have complete personal and fiduciary control of the ward’s life decisions. The guardian has fiduciary and other important responsibilities to the ward, which means he or she is responsible for diligently and responsibly making decisions about the ward’s person, property, or both. Part of this responsibility involves inventorying the ward’s property and drafting reports for the court on at least an annual basis (more often if requested by an interested person or the court itself).
Once the petition for guardianship is filed, the court appoints an examination committee to perform a physical examination, a mental health examination, and a functional assessment. If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that adequately address the person’s incapacity.
When is it necessary to file for a Guardianship?
That is a question best answered on a case-by-case basis. Most commonly, guardianship is a consideration for a person suffering from dementia or injury. But, a minor could also need a guardian, if the parents die or become incapacitated, or if the child receives money in excess of $15,000.
The Courts view guardianship as the last resort, as it is so restrictive. But, it can be necessary to file for guardianship if a person does not have documents in place nominating someone to help exercise some or all of the legal rights of an incapacitated person. Those documents, known as advanced directives, include a durable power of attorney, health care surrogate and living will, and a preneed naming of a guardian.
Sometimes, though, even with those documents in place, guardianship may be necessary if the person is a threat to their own safety or perhaps financial loss is an issue. For example, if you are concerned that your parent, who has dementia, may execute another durable power of attorney naming someone your parent just met, you may need guardianship.
UNDERSTANDING KEY TERMS: The difference between Guardianship, Power of Attorney, and Case Manager
Before you can understand these important differences, you need to know what they mean. A Guardianship is a legal proceeding in which one person, called a guardian, is court-appointed to exercise some or all of the legal rights of an incapacitated person, known as a Ward, per Chapter 744, Florida Statutes. The guardian then has full decision-making authority in the areas deemed appropriate by the court (person, property, or both), relinquishing decision-making authority from the ward.
A Durable Power of Attorney is a very powerful legal document in which you give legal authority to a person of your choosing to help with your legal and financial affairs. In the document, the maker of the power of attorney (the “principal”) grants the right to act on the maker’s behalf as that person’s agent. This document does not relinquish decision-making of the principal, rather adds someone to be able to make decisions on their behalf, in addition to themselves, unless the principal is later deemed incapacitated. While the powers granted can be similar to that of a Guardian, this document must be executed by someone with the capacity to make decisions, whereas a Guardianship is deemed appropriate by a court if and when the person no longer has the ability to make appropriate decisions for themselves.
The important difference is, with the Durable Power of Attorney you are making the choice of who you want to help you when you need that help. A guardianship is when the Court orders someone, who may not necessarily be someone of your choice, to manage your legal, financial, and medical affairs.
Case Management can provide assistance in the way of assessing daily needs, planning and coordinating services for those needs, and monitoring service delivery. A case manager can be your extended arm in matters affecting your daily life, connecting you to professionals for healthcare, legal and financial assistance, housing, transportation, meals, and more. Their purpose is to assist in managing everyday life without being a decision-making authority.
A case manager can be hired by the individual, their power of attorney, or their guardian to assist. In many cases, the power of attorney or guardian is at a geographical distance and needs someone to provide hands and eyes-on assistance.
