After a judicial hearing is held and the ward is found to “lack the capacity to manage some or all of his/her property or to meet at least some of the essential health and safety requirements of such person”(§ 744.102(12), Florida Statutes), the proceeding for an involuntary guardianship is implemented.  The Court may appoint either a plenary or limited guardian, depending on the extent and severity of the ward’s incapacity. 

In a plenary guardianship, all of the Ward’s delegable rights are delegated to the guardian; no rights are reserved for the Ward.  § 744.102(9)(b), Florida Statutes.  These delegated rights are found in § 744.3215(3)(a-g) and include the following: to contract; to sue and defend lawsuits; to apply for government benefits; to manage property or to make any gift or disposition of property; to determine his or her residence; to consent to medical and mental health treatment; and to make decisions about his or her social environment or other social aspects of his or her life.  A plenary guardianship is the most common type of guardianship.  There are statutory procedures in place wherein the ward may have his rights restored at a later time; however, according to a 1998 study commissioned by the Claude Pepper Foundation, such restoration of rights only occurs in 2.63% of guardianship cases. 

In a limited guardianship, the appointed guardian is appointed to exercise some, but not all, of the delegable rights listed above.  § 744.102(9)(a), Florida Statutes.  The order appointing a limited guardian must state the scope of the guardians delegated rights and duties. 

A preneed guardian may also be appointed in two instances.  First, a person designates who shall serve as his or her own guardian in the event the person becomes incapacitated or needs a guardian for any other reason.  Second, a parent may select the person(s) who will serve as the guardian of their minor children should the parent die or become incapacitated while the child is still in the age of minority.  A preneed guardian eliminates the need for prolonged litigation in the appointment of a guardian because the court must appoint the selected guardian if that person is otherwise qualified to do so, pursuant § 744.3046(7). 

A “standby” guardian may be used by the Court after a guardian is appointed.  A “standby” guardian takes on the duties and powers of the appointed guardian within twenty (20) days of the death or resignation of the appointed guardian.  However, the “standby” guardian has no immediate duties or powers.

Elder Law Concepts is not always for the Elderly.

In some cases, a parent may see their child go through a sudden, unexpected fight with cancer; a brother may be trying to take advantage of his wealthy but impaired sibling by stealing his financial assets; or a daughter might have witnessed the advisors of her mentally incompetent mother conspiring to misappropriate her assets.   There may be circumstances where immediate action is necessary in order to protect the health and/or financial welfare of such a person.  In these cases, an adult interested in the welfare of a loved-one may wish to petition the court for an emergency temporary guardianship (ETG).  While, the typical ETG is used for incapacitated senior citizens, there are scenarios with teenagers and other young adults who may be abusing drugs and/or alcohol as to warrant the imposition of an emergency temporary guardianship. 

 §744.3031 (1), Florida Statutes, states as follows regarding the requirements for the appointment of an emergency temporary guardian:

The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. 

If appointed with the task of being the emergency temporary guardian, this guardian would be required to take an oath to faithfully perform the duties of a regular guardian.  This temporary guardianship will last for 90 days or until a permanent guardian is appointed, whichever comes first.  Such duties would include the handing of the ward’s finances, the making of medical decisions if no healthcare surrogate had been nominated, and the overall maintenance of the ward’s affairs.  Additionally, the emergency temporary guardian must file a final report of the ward’s financial status no later than 30 days after the expiration of this appointment.    

The most important factor for the court to assess in deciding whether an emergency temporary guardian is necessary is how apparent the “imminent danger” actually is to the person in question.   

The interpretation and application of “imminent danger” is extremely subjective and varies on a case-by-case basis.  Although case law is rather bare on the subject, the court in Batzle v. Baraso, 776 So.2d 1107 (Fla. 5^th DCA, 2001) approved the appointment of an emergency temporary guardian when the ward was diagnosed with a progressive form of cancer.  In this case, the appointment was approved even though there was no adjudication that the ward was mentally incompetent.  The court in Borck v. Borck, 906 So.2d 1209 (Fla. 4^th DCA, 2005) authorized the appointment of an emergency temporary guardian after finding that the ward was suffering from Alzheimer’s disease, was legally blind, and was hearing impaired.  In addition, the petitioner made allegations that the ward was being abused by the respondent and that this abuse was interfering with the nursing staff’s ability to properly care for the ward.

It is always difficult to see a loved-one who is physically or mentally suffering; and it is even worse to see others trying to take advantage of that illness for their own personal or financial gain.  Depending on the specific circumstances, the appointment of an emergency temporary guardian can be a very useful tool to help prevent such a misappropriation of a love-one’s assets and/or protect the ward’s physical health and well-being.

Recently, it was reported that the percentage of people filling out living wills and healthcare surrogate forms has increased little since Congress enacted the Patient Self Determination Act ordering healthcare facilities to provide information to patients about advance directives.

What are advance directives?

With about 80 percent of deaths occurring in hospitals or nursing homes, you can use advance directives, in the form of a living will, to let their doctors and family know what kind of treatment you do not want in case you are incapable of making the decision.  A living will does not mean you want to forego life-saving treatment; it simply sets forth how you want, or don’t want, aggressive high technology treatment, feeding tubes, respirators, and other life support measures.

Although the original health care bill provided that Medicaid could pay for consultations about end of life issues, this provision was unfortunately dropped as part of the final bill, due in part to the “death panel” hysteria and the labels that were attached to the issue.

It’s a good idea to sit down with your family and talk about your decisions and instructions.  Another potential area to address is to consult an attorney and discuss the possibility of a pre-need guardian.  A “preneed guardian” is a person named in a written declaration to serve as guardian in the event of the incapacity of the declarant as provided by statute.  Florida’s preneed guardian statute works as follows:

• A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity.  The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
• The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.
• Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.
• The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.
• If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
• Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.

One of the fundamental advantages to the preneed guardian advance directive is it essentially insures that the person or professional you want to serve as your guardian is in fact the one selected by the court.  Of course, this is subject to the qualification and fitness of the person selected.  For example, in Davis v. King, 686 So. 2d 763 (Fla. Dist. Ct. App. 5th Dist. 1997) in a contested guardianship litigation, the court found the preneed guardian unqualified to serve as plenary guardian upon a determination of the ward’s incapacity based on evidence that the preneed guardian had paid off her mortgage using the ward’s money, had purchased real property owned by the ward for less than market value, and that the ward’s bank account had been depleted during the same time period.

Your mother’s incompetent to handle any of her affairs…but she can sign a new Will cutting you out!

An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian. 

Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for appointment of a guardian, which the Court approved.  While under the care of the guardian, the testator was moved around so that the out-of-state relatives did not have contact with her and were unable to locate her for substantial periods.  Despite that a guardian was being appointed, the decedent was seen by a physician and psychiatrist and was found to be lucid.  She then signed a will, leaving her recent friend (who had asked for the guardianship in the first place), and charities which he solely controlled, the entirety of her quite substantial estate. (more…)

Many clients request information on the differences between Guardianships and Powers of Attorney.  These are important topics when decisions must be made for a family member who has been deemed incapacitated, can no longer manage their own finances or make their own medical decisions.

An ordinary or standard power of attorney document provides the authority for another person (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and for example, they break a hip and need extensive rehabilitation, then the principal will not be able to attend to their normal monthly payment of bills or banking transactions.  Also, the principal may plan to take an extended trip or vacation, and may need to have documents executed while they are away.  The ordinary or standard power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to sign documents, receive and pay bills and make banking transactions on the principal’s behalf.  An ordinary or standard power of attorney would become invalid if the principal became mentally incapacitated. (more…)

With the recent news involving Michael Jackson’s children becoming the subjects of a guardianship, many people are asking questions about this function of the law, and its meaning and application in connection with their older friends and relatives who are residents of Florida.

It is well known and recognized that Florida is home to a large population of older people who have outlived outlived all those who care for them.  Sometimes, because these persons are vulnerable and susceptible to exploitation,  it becomes necessary to seek the protection of the court’s system of guardianship.   Often, I encounter situations where there are individuals who, although they still have relatives and friends who want to manage their finances, their friends and relatives may be fighting among themselves, or may be financially or emotionally exploiting the individual.  These situations also present circumstances that may warrant a court’s examination of what may be in the older person’s best interest. (more…)

Fifth District Court of Appeals Encourages Legislature to Clarify Statute

The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law.

The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity:

“Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion[.]” (more…)

Third District Upholds Palm Beach Probate Court’s Appointment of Guardian Not Related to the Ward by Blood or Marriage.

The decision of whether and when to have a loved one declared incompetent is a difficult and challenging process, and should involve an attorney who is familiar with the issues and procedures of guardianship law. In Florida, the guardianship statutes provide for certain procedures to protect the rights of the person who is allegedly incompetent.

The process generally involves the filing of a Petition to Determine Incapacity. Fla.Stat. §744.331(1). Thereafter, the Court will appoint an examining committee to assess the mental and physical condition of the person who is allegedly incapacitated. Fla.Stat. §744.331(4). Depending on the report presented to the Court, a hearing will be conducted wherein testimony and other evidence is heard, and the Court decides if the alleged incapacitated person is actually incapacitated and then whether a guardian is necessary. (more…)

When is a Guardian barred from suing the doctors that allegedly caused her daughter’s brain damage?

Mrs. Thomas was named as plenary guardian for her daughter, Tammy, after Tammy suffered a heart attack and brain damage while giving birth to her baby.  Mrs. Thomas claims that Tammy wouldn’t have been hurt, except for the doctor taking too long to deal with Tammy’s high blood pressure.  On Tammy’s behalf, and she sued the doctor, the hospital, and others.

The trial court ruled that Mrs. Thomas took too long to bring the lawsuit, and it was barred as a matter of law by the Florida Medical Malpractice Statute of Limitations.  Under that Florida law, Mrs. Thomas has two (2) years to file suit.  Calculating  that deadline is key: on what date does time begin to run for the plenary guardian? (more…)