Estate planning helps to preserve the rights of our elders or special needs persons and addresses guardianship head on

Guardianship – What is it?

Answer: A court intervention to safeguard the property and personal 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.[1]  This is accomplished through the court’s appointment of a three (3) 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 personal medical decisions and or treatment, among others.  A court’s inquiry to determine incapacity is 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 or poor reasoning. The reason for a high standard is that personal civil rights are at stake, and a person’s right to make their own decisions – even those many may consider ill-advised – is fundamental in a free society.

Courts may determine there is partial or temporary incapacity.  For example, a court could decide a person is capable to make routine financial decisions, such as, pay regular monthly bills, while also finding that a person is incapacitated relative to out-of-the-ordinary expenditures.  This may result in a limited guardianship (“ETG” – Emergency Temporary Guardianship) whereby the court appoints a guardian (family member and or a Professional guardian) to make decisions regarding out-of-the-ordinary expenditures.  The court remains involved because all guardianship rulings are under the court’s direct supervision.

The spike in guardianship proceedings 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.[2]  The press release states that the “WINGS” initiative has the objective of “insuring adequate protections from exploitation, data gathering collection, education about alternatives to guardianship (least restrictive options), restoration of full civil rights and a review of guardianship statutes.”[3]

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. These situations may lead to guardianship litigation and contests.

While courts and legislatures are increasing their focus on protections for the elderly and special needs persons, one answer to the growing dilemma is advance estate planning.  Proactive planning kept an AIP (Alleged Incapacitated Person) from having his ex-wife replaced as his fiduciary in one Florida case.[4]  There, the ex-wife was named in the AIP’s advance directive documents as attorney-in-fact, health care surrogate, plenary guardian and trustee.[5]  The grandniece of the AIP, however, petitioned the court seeking the appointment of a Professional guardian for her great uncle.[6]  The court found the great uncle was indeed incapacitated.[7]  Upon this finding, if no less-restrictive alternative option 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 in his estate plan, entrusting his affairs to his former spouse was a satisfactory alternative to guardianship.[8]

The foregoing provides an overview of how estate planning offers a less restrictive alternative to guardianship, which helps preserve the civil rights and 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, contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help. Bart Chepenik, 305-613-3548, 305-981-8889,


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),

  • 744.102 Fla. Stat.

Guardianship, Fla. Cts.,

[1] § 744.331 Fla. Stat.


[3] Id.

[4] See generally Adelman v. Elfenbein, 174 So. 3d 516 (Fla. 4th DCA 2015).

[5] Id. at 517.

[6] Id.

[7] Id. at 518.

[8] Id. at 518-19.

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