By Rebecca M. Vaccariello
While no one plans that they will need a guardianship proceeding commenced, in many different types of scenarios it may be necessary. This article explains the general types of cases when guardianship can come into play and some basic concepts relating to how the guardianship process works.
In terms of who may need to be subject of a guardianship, guardianships arise in cases beyond the elderly and include special needs individuals and those with developmental delays. Even for someone who has all their estate planning documents in place, if an agent under a power of attorney is found to mismanage assets, a guardianship can be commenced and the selected agent will be replaced. In other situations, no power of attorney document can be found and a guardianship must be commenced when the person suddenly becomes incapacitated. In cases where an adult becomes incapacitated while they are relatively young due to an accident or illness, the person may never have executed a power of attorney or estate planning documents. There are also cases where developmentally disabled individuals, who do not have capacity to execute a power of attorney, are going to need a guardianship commenced when they reach the age of 18 in Florida.
Regarding the selection of a guardian, it is often a family member or friend. If a person has no assets and no family or friends able to act, then Florida has a public guardian who can step in to act. In cases where a person has assets, a professional guardian can also be appointed in guardianship cases when there is no family or friend to serve as a guardian of an incapacitated person, or when there is family conflict that precludes family members from working together. There are approximately 40 professional guardians in Collier County registered presently with the Florida Department of Elder Affairs. As with any case where personal services are involved, the involved parties need to ensure that the personalities are a good fit to the extent possible.
The guardian will be appointed as a guardian of the person, of the property, or both. In cases where an incapacitated person only has Social Security benefits, a guardianship of the property may not be needed because an option exists to become the designated representative with Social Security. In addition, if more than one person is available to act as guardian, then the duties may be split between two people so that one person takes care of the person’s personal and medical needs as guardian of the person, and the other takes care of the financial side of things as guardian of the property. The guardian of the person is not required to personally care and house the incapacitated person, although in some cases that does happen, such as parents who are guardians for their developmentally delayed adult children.
A guardianship can be commenced at any time and in the case of children who have developmental disabilities, it is a good idea to start the process at least a few months prior to their eighteenth birthday to ensure that the guardianship is in place in a timely manner.
A guardianship proceeding is required to be commenced where the incapacitated person resides. If the incapacitated person has property and assets out of state, a separate proceeding in that state may be required, for example for real property.
The guardianship is established when “letters of guardianship” are granted. The letters of guardianship are a document that give the guardian the authority to act. Once the letters are granted, the guardian has 60 days to file with the court an initial plan of guardianship. For a guardian of the person, this plan encompasses the incapacitated person’s medical and personal needs. For a guardian of the property, this plan involves an initial inventory of all assets that the guardian has had come into their possession. Following the initial filings, guardians are required to file reports on an annual basis.
It can be overwhelming to be suddenly thrown into the world of guardianship for the family members of an incapacitated person. There are resources to help you as you travel through the process and partnering with an attorney familiar with guardianship can help put you in touch with other available resources as well.
This Article does not constitute legal advice and may not be relied upon as such. Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.
Rebecca Vaccariello is a litigation attorney at Salvatori, Wood, Buckel, Carmichael & Lottes. Rebecca was admitted to the New York Bar in 2000, the Florida Bar in 2010 and the United States Supreme Court in 2013. Rebecca is an active member of the Florida Bar’s Real Property, Probate and Trust Law Section, where she sits on two committees: the Probate and Trust Litigation Committee and the Guardianship and Power of Attorney Committee. Rebecca focuses her practice on civil litigation matters including trust and estate litigation and contested and uncontested guardianships. Rebecca resides in Naples, Florida.
Salvatori, Wood, Buckel, Carmichael & Lottes
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