Guardianship: When No Less Restrictive Alternative is Available
What is guardianship?
The simple answer: court intervention to safeguard the property and care of an individual unable to make such decisions themselves.
A person under guardianship becomes a ward of the court. State law establishes the process for determining an adult’s need for guardianship, which involves a finding of incapacity.
Florida Statutes outline a procedure for courts to make a determination regarding incapacity. This is accomplished, in part, through the court’s appointment of a three-member examining committee for the purpose of providing the court with expert advice. Each examining committee member submits a report to the court regarding the alleged incapacitated person’s (“AIP”) ability to retain her or his rights, such as: the right to have a driver’s license, the right to contract, and the right to consent to medical treatment, among others. A court’s inquiry to determine incapacity is very fact-specific, and the court’s decision is made under a “clear and convincing” evidence standard. This legal standard is a higher bar than mere demonstrations of an AIP exercising poor judgment. The reason for a high standard is that civil rights are at stake, and a person’s right to make decisions—even those many may consider ill-advised—is fundamental in a free society.
Sometimes, courts will determine there is partial incapacity. For example, a court could decide a person is capable to make routine financial decisions, i.e., pay regular monthly bills, while also finding that a person is incapacitated relative to out-of-the-ordinary expenditures. This can result in a limited guardianship whereby the court appoints a guardian to make decisions regarding out-of-the-ordinary expenditures. The court remains involved because all guardianships are under the court’s supervision.
The tremendous increase in guardianships in recent years has illuminated the need for improvements to the system of court-appointed guardians. The Florida Supreme Court announced an initiative to address challenges with guardianship—the Working Interdisciplinary Network of Guardian Stakeholders (“WINGS”)—in July 2017. Specifically, the press release states that the WINGS initiative has the objective of “insuring adequate protections from exploitation, data collection, education about alternatives to guardianship and restoration of rights, and a review of guardianship statutes.”
Guardianship complexity increases when there is geographic dispersion of family members across multiple jurisdictions, and when familial relationships come under increased pressure due to divorces and second marriages. Additionally, “custody feuds” sometimes occur between family members competing to care for, and to receive resources for the care of, elderly family members. These kinds of issues are likely to become increasingly common as the population continues to age.
While courts and legislatures are increasing their focus on protections for the elderly, one answer to the growing dilemma is advance planning. Proactive planning kept an AIP from having his ex-wife replaced as his fiduciary in one Florida case. There, the ex-wife was named in the AIP’s advance directive documents as attorney-in-fact, health care surrogate, plenary guardian, and trustee. The grandniece of the AIP, however, petitioned the court seeking the appointment of a professional guardian for her great uncle. The court found the great uncle was indeed incapacitated. Upon this finding, if no less-restrictive alternative to guardianship exists, the court must appoint a guardian. However, in the case of the great uncle, the court determined that the advance directive documents entrusting his affairs to his former spouse was a satisfactory alternative to guardianship.
The foregoing provides a brief overview of how estate planning may provide a less restrictive alternative to guardianship, which can help preserve the rights and preferences of elders. If you are interested in more information in how to preserve elder rights through estate planning for you or for a loved one, please do not hesitate to contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help – Bart Chepenik, 305-613-3548, Brad Trushin, 305-321-4946, we are always available.
Erica Wood, Recharging Adult Guardianship Reform: Six Current Paths Forward, 1 Touro l. Ctr.’s J. of Aging, Longevity, L. & Pol’y Issue 1, Article 5, (2016), http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1002&context=jallp.
- 744.102 Fla. Stat.
Guardianship, Fla. Cts., http://www.flcourts.org/resources-and-services/family-courts/guardianship.stml.
 § 744.331 Fla. Stat.
 See generally Adelman v. Elfenbein, 174 So. 3d 516 (Fla. 4th DCA 2015).
 Id. at 517.
 Id. at 518.
 Id. at 518-19.