Friends and family members often worry about how to protect their elderly loved ones. Particularly at risk are elders with advanced dementia, making them vulnerable to scammers and sometimes unable to take care of themselves. Florida’s Department of Elder Affairs reports that nearly 12% of Florida’s senior population has been diagnosed with Alzheimer’s disease, which often manifests through dementia. A visit to an attorney frequently leads to the discovery that estate planning, including advance directives that give voice to one’s future wishes and help avoid a guardianship, has not been done. As a result, guardianships are often considered as a last-resort solution.
A guardianship is a court process where someone petitions the court about a person he or she believes is incapacitated. Next, a three-person committee will each meet with that person and investigate the claims. If the court determines that the person is incapacitated, a guardian is needed. If no family member is willing or able to serve as a guardian, the court will appoint a public or professional guardian.
Guardianships are meant to be a last resort because they are the most restrictive form of decision-making available. Sacred rights, such as the right to marry, vote, have a driver’s license, sign contracts, and make medical and social decisions may be taken away by the court. Some rights may be delegated to an appointed guardian or to the court, and some may be removed entirely.
Many guardianship laws changed recently to prevent fraud, waste and abuse. Instigated by reports of abuse described in legislative hearings, Florida lawmakers responded to those who claimed they had been victims of the guardianship process. In 2014, the legislature made the background screening process more intense for prospective guardians, and gave the clerk of court more power to review and oversee assets under control of the guardian. In 2015, many laws were updated to provide further protection for the person whose abilities were being questioned. In 2016, the legislature created the Office of Public and Professional Guardians (OPPG). The OPPG is charged with regulating and disciplining professional guardians to protect against abuses.
Many clerks have already been working with OPPG to investigate complaints against professional guardians. The OPPG is currently in the process of rulemaking to regulate professional guardians.
Consider contacting an attorney to discover how estate planning can proactively diminish the necessity of guardianship.