Guardianship 101 – What you need to know and learn

Guardianship: Don’t Believe Everything You Watch on Netflix

Netflix’s new sensationalist movie “I Care a Lot,” released this past February 19, 2021, might have you thinking that being a guardian may be the path to wealth and easy money. Although a scammer making a living by successfully requesting the courts to appoint her as the guardian of elderly people she falsely claims cannot take care of themselves makes for a captivating story, fortunately this is far from the reality of guardianship practice.

Guardians are appointed by the court to care for and manage the property of people who cannot do it for themselves, such as individuals with a chronic mental illness, dementia, traumatic brain injury, or orphaned children. But the first thing to keep in mind is that, before a guardian is appointed, the allegedly incapacitated person has to be declared incapacitated by a court of law. This process involves the evaluation by one or more mental health professionals and/or physicians. Thus, unlike the movie, simply alleging a person cannot care for him or herself will not be sufficient. Once the person is deemed incapacitated, some or all of his or her legal rights are removed, and the guardian is charged with the responsibility to exercise those rights on behalf of the incapacitated person, who is legally referred to as “the ward.”

But this does not mean that the guardian is free to do whatever he or she wants with the ward’s property. Instead, the guardian becomes a fiduciary of the ward, being legally required to act in good faith and make decisions that will further the best interest of the ward, and can be sued for breach of fiduciary duty.

Under Florida law, a guardianship may be limited or plenary. Fla. Stat. § 744.2005(2). A limited guardianship is established when the court finds the ward lacks the capacity to perform some—but not all—of the tasks essential to care for his or her property. But, if the court finds the ward is entirely unable to care for his or herself, a plenary guardianship will be put in place. In either case, the court retains the power to supervise the guardianship to ensure the best interest of the ward is advanced.

One thing the film got right, though, is the name: Guardians do care a lot for the individuals they nurture. They protect the ward, making sure others do not take advantage of their vulnerability and ensuring their property is properly administered.

If you believe one of your loved one may benefit from a guardianship or having a family guardian, make sure to talk to an experienced Guardianship attorney. Ensure the attorney has significant legal acumen and actual experiences with guardianship laws and statutes. Not an attorney who will tell you she or he can maneuver their way through the laws.

The lawyers at Chepenik Trushin LLP are experienced, ready, and willing to help you. Please contact Bart Chepenik, JD, LL.M. (cell 305-613-3548) or Brad Trushin, Esq. at 305-981-8889, who are ready, willing, and able to assist you with all of your estate planning, probate, and guardianship needs.

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