Guardianship Tip of the Day: What is Guardianship?

Guardianship Tip of the Day: What is Guardianship?


Hi. I’m attorney Gregory Schwendeman, I’m with the law office of Amy B. Van Fossen. The last week, attorney Tyler Runte gave you some tips of the day regarding estate planning, and now this week we’re going to present guardianship issues to you.

What Is Guardianship?

You may ask what is a guardianship? Well, guardianship is a legal tool that gives one person the ability to make decisions for another person. Guardianships occur usually when a person becomes incapacitated and can no longer make their own legal, financial, and healthcare decisions and guardianship can only be established by a judge, where there are no least restrictive means available to make those very important decisions.

Florida law requires that you have the assistance of an attorney in guardianship proceedings. Most people think guardianship only applies to the elderly who may be suffering from dementia, such as Alzheimer’s, but guardianship is also a very legal useful tool for minors who may be inheriting money or for special needs young adults. In the coming days, we will explore these and other issues. If you have any questions about guardianship or elder law in general, please call us at (321) 345-5945. Thanks a lot and I’ll talk to you soon.

What Do I Need to Know About a Medical Power of Attorney?

What Do I Need to Know About a Medical Power of Attorney?

A person designated as Medical Power of Attorney may go by several titles including Designation of Health Care Surrogate, Health Care Power of Attorney, Durable Power of Attorney for Health Care, or Health Care Proxy. No matter the name, this influential legal document gives another person (the “health care agent”) the legal authority to make health care decisions for you when you (the “principal”) are unable to do so.

What Can a Medical Power of Attorney Do?

Choosing a Health Care Power of Attorney is an important role that is best assigned to someone you can count on. Whether that is a trusted friend, family member, or licensed professional, you need to know the person will make the best decisions for your medical treatment when you are unable to speak for yourself. 

Whoever you designate can communicate treatment preferences directly with your health care professionals. A Medical Power of Attorney or health care surrogate can make medical decisions, decide on care facilities, share your preferences for care, and advocate for your treatment wishes.

What are the Responsibilities and Limitations of a Medical Power of Attorney?

As Medical Power of Attorney, the person or company you choose for this role has the responsibility to follow your wishes for health care when you can not advocate for yourself. While these discussions can be uncomfortable, it is important that you share how you would like times of incapacitation and/or end-of-life medical situations to be handled. These may include decisions around life support, ending nutrition, or life-sustaining treatment options.

Unless specific restrictions are written into the document, the Medical Power of Attorney can make a wide range of medical decisions on your behalf when you are unable to. However, there are some restrictions that remain including:

  • Denying palliative care or medical interventions for comfort care
  • Hospitalization for mental health treatment
  • Agreeing to psychosurgery or convulsive therapies

Is There a Difference Between a Power of Attorney and a Medical Power of Attorney?

Yes. A general power of attorney is more often tied to financial decisions. A Medical Power of Attorney is an advance directive that specifically gives your designated agent the power to make health care decisions on your behalf.

Do I Need a Medical Power of Attorney?

While many people wait until later in life to consider a Medical Power of Attorney, we all know that life situations can take unexpected turns. Whether you are facing surgery, a terminal condition, or simply want to make sure that your wishes will be followed at any point that you become incapacitated, a Medical Power of Attorney is a wise decision. By taking this step, you will continue to make decisions for yourself as you are able, but also protect yourself should the unexpected occur.

The Law Office of Amy B. VanFossen specializes in Elder Law and has the experience and expertise necessary for these kinds of documents and decisions. Please contact us for a consultation, updating existing documents, or a review of your current estate plan.

Does My Loved One Need a Case Manager or Guardian?

Does My Loved One Need a Case Manager or Guardian?

Establishing elder care planning can be confusing for families. Finding the right information about the options for care management will help your loved one remain as independent as possible. With the guidance of the team at The Law Office of Amy B. Van Fossen, P.A., your family will also protect your loved one’s assets and plan for quality of life when respite care is needed while you determine whether you need case management or guardianship.

What is a Case Manager?

Case managers act as points of contact in the care team that may include medical professionals, service providers, or assistants in someone’s plan of care. The relevant professionals may include a wide variety of social services, medical care, or legal care. The case manager plays a vital role in communicating new developments and critical information so that each member of the care management team can make informed decisions.

Why would an adult have a case manager?

There are many situations where it may be helpful for an adult to have a case manager. Particularly with elder care, this may be necessary when a loved one does not have the energy, health, or mental capacity to keep up with their daily care. A case manager plays a crucial role in a variety of tasks, planning, meeting with professionals, and coordinating everyday life for your loved one without removing their final decision-making authority.

How do case managers help families?

Case managers help families by serving as your extended arm when a loved one needs a care team but none of the primary family caregivers have the time or ability to serve in that role. A case manager can operate as a care manager for your loved one’s practical needs as well as serve as the primary contact for critical information that is needed by each member of the care team. 

How does an elder care attorney help with case management?

An elder care attorney is a valuable advocate for your loved one as the case manager is making decisions for their care plan. Partnering with an elder care attorney with a case manager can help your family consider a plan of care for a variety of concerns, expenses, and recommendations for care that may develop.

What is Guardianship?

Guardianship is a quality of care above a case manager intended to serve someone who has less ability to manage their day-to-day lives or important health care and financial decisions. A guardian can befamily caregiver, a close friend, or a fiduciary with several wards who answers to the court on the person’s behalf.

Why would an adult need a guardian?

The most frequent scenario where an adult needs a guardian is when they have a limited or complete inability to manage their own life decisions. There are two types of guardianship in Florida, limited and plenary (full). Under limited guardianship, the adult in care (referred to as a ward) can still make some independent decisions. If the adult is under plenary guardianship all decisions about the ward’s person and property are made by the guardian.

How does an elder care attorney help establish guardianship?

Our elder care attorney team can help file legal documents such as a petition for guardianship to assess the physical, mental, and functional health of your loved one to determine the types of care needed. 

Then, after the level of need is established, a personal contact from our law offices can help you locate a guardian or help your family establish the best guardian for your loved one.

If you believe your loved one may need a case manager or guardian in Central Florida contact The Law Offices of Amy B. Van Fossen, P.A. Our attorneys will take care to listen to your loved one’s wishes and ensure your family has a clear plan in place. Contact us today to learn more about how Florida case management and guardianship work.

Family Guardian vs. Professional Guardian

Family Guardian vs. Professional Guardian

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.

Who Will Make Decisions About Your Health Care If You Cannot?

Who Will Make Decisions About Your Health Care If You Cannot?

A Designation of Health Care Surrogate also called a Health Care Power of Attorney, a Health Care Proxy or Durable Power of Attorney for Health Care, gives legal authority to another person (a surrogate or agent) to make decisions about your health care if you are unable to make them yourself. This prevents the courts from getting involved if there is a disagreement between family members and/or the medical community as to what actions you would want taken.

Keep in mind that you will continue to make decisions about your care for as long as you are able. Nevertheless, your surrogate/agent can step in and act for you when you cannot. This document can be valuable even for short periods of time, such as if you are recovering from surgery.

However, this document is often associated with end-of-life decisions. The person you name as your surrogate or agent may make decisions that may extend your life for as long as possible or decisions that may bring your earthly life to an end. These decisions may include whether or not you should have surgery if life support should be initiated, and/or if nutrition should be stopped. The legal document includes your wishes on these and other end-of-life issues so there are no questions when the time comes.

This is a difficult subject for some people to even think about, but it is important that you do, and that you discuss these matters with your physician, family members, and friends. The more people who know about your preferences, the easier it will be for your surrogate/agent to carry out your wishes. If you change your mind over time, let others (especially your surrogate/agent) know.

Whom should you name as your surrogate/agent? Here are some considerations:

  • Most people name a family member, but you can also name a trusted friend.
  • It should be someone who knows you well, respects your wishes, and will follow your instructions.
  • It might bring you some comfort if this person shares your values about faith, life, and death.
  • You can list your surrogate(s) / agent(s) in a variety of ways. You can allow them to act independently, together, or one as backup for the other.
  • Consider your candidates’ personalities and emotional make-ups, and whether they would be able to handle the responsibility.

If you have been asked to be someone’s surrogate / agent, consider carefully if you would be able to follow his or her wishes when that time comes. Most people consider it an honor to be asked, knowing this person has chosen them to have his or her life in their hands, but you don’t need to walk this journey alone. Contact us to learn more about this important responsibility. Our attorneys will ensure that your loved one’s wishes are in order long before you need to concern yourself with thinking through the details of making significant decisions.