Can I Avoid Guardianship Pitfalls?

The Grants, happily married for 58 years, were enjoying their time in an “active adult” community with a great view of the woods, a view they enjoyed immensely.  In the morning, John Grant enjoyed reading the Times, or catching up on the latest best-seller, while his wife Judy would take her time applying her makeup for the day, struggling given the arthritis she suffered in her hands and legs.

Then came a knock at the door.  The person at the door introduced herself as Ms. Jones, the owner of a private guardianship company.  She told the Grants that she had an order to “remove” them from their home.  She then instructed them to “gather your things,” and that if they did not comply, Ms. Jones indicated that she would have to call the police.

As it turns out, in the Grants’ case, they had become temporary wards of the court, without their knowledge.  While unusual, there was a proceeding that occurred in which information was gathered about the Grants without the requirement of having the Grants present.  Therefore, on the strength of a petition from the guardian alleging a “risk of financial mismanagement and physical harm,” a physician’s assistant letter alleging that Mr. Grant is unable to take care of Mrs. Grant, and a letter from Mr. Grant’s doctor, stating that Mr. Grant becomes “upset and disoriented,” the Grants were taken from their home.

This kind of horror story does not happen every day, but it is something that can occur unless you make sure to plan ahead to address any guardianship issues.  This article will take a little time to go over the basics of guardianships and give you some thoughts on how to make sure that you never have to worry about the ordeal the Grants faced.

Of course, the best way to make sure that you have appropriately planned for the future is to consult with the top guardianship attorneys in West Palm Beach, Doane & Doane.  We understand the important issues to consider with guardianship, and guardianship planning.  If you are concerned about a guardianship issue, contact us for a free consultation at 561-656-0200.

When Is a Guardianship Necessary?

A guardianship is necessary when you have a loved one or a family member who can no longer take care of themselves, and they have not put in place the proper estate planning tools.  Those tools could be things like a durable power of attorney, a health care surrogate, a living will, or a revocable living trust with assets transferred into the trust.  Accordingly, a guardian is a person who can step in and manage a person’s medical care, and manage a person’s assets because he or she is now incapable of doing so.

Another example where a guardian is needed is in the situation in which your minor child inherited $20,000 from Grandma, but Grandma did not set up a trust for your child.  Under the law, any minor child who inherits assets over $15,000 must have a guardianship to help with administering the inheritance.  That actually comes as quite a shock to the unsuspecting children and grandchildren.

In sum, when a court views an issue with regard to the care or oversight over someone who is considered unable to care for themselves, a guardianship is often the route a court will take.  However, with proper planning ahead, you can avoid the type of situation suffered by the Grants in the opening scenario discussed above.  In that vein there are rules with regard to a guardian – such as the guardian in the Grant scenario – who is not behaving or conducting him or herself appropriately.

What Can I Do If I Think a Guardian is Not Behaving Appropriately?

If for any reason you are concerned that a guardian is being physically abusive to a ward, you need to immediately call 911 or contact adult protective services and file a report.  If you are concerned that a guardian is wasting assets or abusing the assets of a ward, you can hire an attorney to represent you as an interested party and file a Notice of Appearance.  At that point, you will have access to all of the accountings, you can file objections, and you can go to court and explain to the judge what your concerns are with that guardian.

At Doane & Doane, we have handled a number of guardianship cases in which the guardian was behaving inappropriately, even venturing onto the side of criminal behavior, such as outright theft from the wards in their care.  Because we have a reputation as the top guardianship lawyers in West Palm Beach , we were able to rectify those problem guardians right away.  If you have concerns about a guardianship yourself, please call us at 561-656-0200.

Can Guardianships Be Terminated, and If So, How?

Guardianships can be terminated.  In fact, they can be terminated in a number of different ways.  The most common way for a guardianship to be terminated is when the ward passes.  At that point the guardianship terminates, the final counting is filed, and the guardian is discharged.

In the situation in which there is a guardian for a minor, the guardianship will end when the minor turns 18 years old.  At that point, the guardian starts the process of termination, the assets are turned over to the 18-year-old ward, and the final accounting is filed.

There is also the process when someone is incapacitated and appointed a guardian, but the ward then resumes his or her faculties, typically after recovering from something like an injury.  In that situation, there is a restoration process in Florida guardianship law, in which you can contact the attorney who was appointed to represent you in the initial incapacity proceedings.  That attorney, then, can file a petition to have your rights restored given that you are now competent again.

How Can A Solid Estate Plan Prevent a Guardianship Proceeding?

One of the main goals of estate planning is to prevent the need for a guardianship.  One of the ways to do that is to set up a revocable living trust and to transfer your assets into that trust during your lifetime, while you have capacity.  If at any given time during your lifetime you lose your capacity, then your successor trustee named in your trust takes over.  There will never be a need for a guardian of your property because your successor trustee, the person you hand-picked to do the job, acts in that capacity for you.

What happened to the Grants is something that you don’t want happening to you or your loved ones.  Learn more about guardianships and the options you have in order to maintain control over who oversees your assets or the assets of a loved one by calling us at Doane & Doane, the expert guardianship attorneys in West Palm Beach.  We are here to help you.  Call today at 561-656-0200.

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