By Bonie Montalvo
Every day, 10,000 Americans turn sixty-five years old. With an aging population, come a variety of issues, with the most serious being elder abuse. The U.S. Department of Justice estimates that one in ten older adults is a victim of elder abuse, and that older adults lose three billion dollars a year through financial abuse.
Florida has the highest percentage of elderly residents in the United States, which means that Floridians need to know how to identify elder abuse and how to prevent it. Guardianship has become an area of law that has seen an increase of abuse by guardians over their wards, with some guardians physically, financially, mentally, and emotional abusing the wards under in their care.
In Florida, only a court of law can declare an individual mentally incapacitated and only a court of law can appoint a guardian for an individual (who is then known as the ward). Given the fact that guardians have such broad powers over the ward, and that wards lose many core rights under guardianship, there is a presumption that all adults are mentally competent until proven otherwise. In order for a ward to be appointed a guardian, there must be a showing of incompetency and affirmative findings that the person is unable to manage his or her affairs. Once a court determines that guardianship is required, certain rights may be taken away from the ward, including, the right to vote, the right to hold a driver’s license, and the right to freely travel (in order to travel the ward will have to petition the court for permission). Other rights are taken away from the ward and delegated to the guardian, which include but are not limited to, the right to contract, the right to make gift, the right to dispose of property, the right to determine residence, and the right to make decisions regarding medical treatment.
The extent of the guardianship also varies depending on the situation. There are three main types of guardianship: guardianship of the estate, guardianship of the person, and plenary guardianship.
Guardianship of estate involves authority only over the assets of the individual, guardianship of the person involves authority to make decisions over the person, such as medical care, and plenary guardianship involves authority over the estate and the person.
At times, guardianships are the only option, and at times are absolutely necessary to prevent further harm to the individual. There are many guardians who serve in a professional and responsible manner, who care for their wards and properly oversee their wellbeing. However, there are also unscrupulous guardians who will take any opportunity to cash in at their wards expense, even if it means subjecting them to physical and emotional neglect.
A report by the U.S. Government Accountability Office (GAO) identified hundreds of allegations of abuse, neglect, and exploitation by guardians against their wards in the United States. The GAO highlighted the prevalence of financial abuse and found that guardians improperly obtained $5.4 million from 158 incapacitated victims. In order to prevent this type of abuse, there are certain steps that can be taken during life in order to avoid the pitfalls of guardianship. One key element involves planning for disability during life, which if done correctly, could spare trauma and financial ruin in the future. Steps that can be taken now include:
• Revocable Trusts: A revocable trust (sometimes called a “living trust”) is an estate instrument that manages and protects your assets. The assets titled in the name of the revocable trust are available to you during your lifetime, and you can name a trusted fiduciary (a “trustee”) to manage your trust assets during your incapacity, further a revocable trust allows you to may how you would like the trustee to manage your assets.
• Durable Power of Attorney: This is a document in which you designate an agent of your choosing to handle your financial affairs, which may prove useful when incapacity determinations are in place and may prevent the court from appointing an emergency guardian on your behalf.
• Advanced Directive: In this document you may appoint a health care surrogate to make medical decisions on your behalf. In situations when only a guardianship of the estate in needed, an advanced directive can prove useful to prevent having the court also appoint a guardian of the person as to medical decisions.
• Pre-Need Guardian Designation: This document allows you to inform the court who you wish to serve as your guardian should the need for a guardian should arise. A designation of pre-need guardian avoids having a stranger appointed as your guardian
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.
Bonie Montalvo practices in the areas of estate planning, business succession planning, tax planning, and not-for-profit law. Ms. Montalvo has her LL.M. in Taxation from the University of Florida and is fluent in Spanish.
Wood, Buckle, and Carmichael Attorneys at Law
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