What is a Guardianship in Florida?

Jill Ginsberg and David Shulman discuss what a “Guardianship” is in Florida?

David: [00:00:00] Hello everyone, I’m David Shulman of the firm Ginsburg Shulman. I’m here with my partner, Jill Ginsburg. Today we’re going to talk a little bit about guardianships. Now Jill’s a board certified elder law who focuses her practice on guardianships. So Jill, what exactly is a guardianship?

Jill: Guardianship is the process, and in some other states it’s called a conservatorship, but in Florida it’s a guardianship, of naming somebody a guardian to stand in somebody else’s shoes to be able to make financial and medical decisions for them.

David: And how does a guardianship happen? You know, what prompts a guardianship? Basically what’s the process?

Jill: The process, and that’s what prompts a guardianship, a prompts is a neighbor who notices that their next door neighbor is suddenly no longer able to cook for themselves and isn’t paying their bills.

A prompt is a daughter noticing that her mother is going downhill and is trying to live in her house but [00:01:00] can’t. A prompt is a daughter that just heard that her father just gave somebody a 100, 000 dollar car because he thought it was a good idea. These are things that.

David: Well, like the housekeeper.

Jill: Yes. Like the, you know, things like this, when you hear things like that, you know, those are the kind of instances where someone’s going to go petition for incapacity and move for a guardianship.

David: Let’s say I have a neighbor that I’m very concerned about, and I see them, I think they’re going downhill. I think they can’t make their own decisions.

I come to you and I say, Jill, as a guardianship lawyer, What would we do? What’s the process?

Jill: So the process is, as a neighbor, or anybody, you are going to what’s called Petition for Incapacity and Petition for Guardianship. A lot of times the neighbor doesn’t want to be the one serving, so while they will be the petitioner, there will be other people that can serve.

In Florida, you can serve if you’re over 18, [00:02:00] if you have not been convicted of a felony, so felons, you’re not allowed to serve. If you’re a relative, you can be out of state, but we also have something called a professional guardian. And these are people that are professionals that serve, that sometimes take the onus off the family or onus off a neighbor who doesn’t have the time or the funds to be able to do that.

David: So they file, the what’s known as the petition to determine incapacity with the court. I understand that the court then sends out an examining committee to examine what’s known as the alleged incapacitated person. Is that, how does that work?

Jill: So that’s exactly what happens. So once somebody petitions for incapacity and guardianship.

You petition for incapacity, you also file a petition for guardianship. That will ignite a bunch of orders that the court will have. So the court, number one, is going to appoint an examining committee, which is anonymous. They’re, you know, off the wheel. They’re appointed, three of them, a psychologist, a psychiatrist, and a social worker or a [00:03:00] layperson, are appointed to go out and examine.

The AIP, the alleged incapacitated person, that’s the person who you’re moving for guardianship for. And then once that happens, the AIP is also appointed their own attorney, which as you can see, those dollar signs are already racking up. So once those committee members go out, they file their reports with the court, and then the process continues.

David: So they come back, let’s say either all three or two out of the three file reports at the court and say this person is completely incapacitated and can’t make decisions for themselves. So what happens next?

Jill: Good question. So if two of the three or three of the three, as the statute says, say that the person’s incapacitated, then the judge is going to declare them incapacitated.

And at that point, they will be considered legally incapacitated. And then the judge will appoint a guardian for [00:04:00] that person, either the guardian who had petitioned, or if there was a fight or something else happened, some litigation, a professional guardian, there might be co guardians, which happens sometimes.

David: And, so it’s often a relative, the person’s adult child or children or a good friend or neighbor. But sometimes, as you said, it’s not available, so there has to be a professional who comes in.

Jill: Correct. I mean, you know, if you can get the neighbor or the family member, it’s a lot easier.

Professional guardians are great, but of course they charge. So again, those fees are going up. And then, you know, once the guardianship is in place, you now basically have to file everything with the court. So every dollar that’s spent, everything that’s done, you renovate a house, you move them into a new facility, they want their hair done, any of those things, those have to be petitioned for by the court.

And every year you are filing an annual report and you’re also filing an annual accounting so that every [00:05:00] last dollar is accounted for to the court.

David: And in your general work, you represent both the family member guardians and professional guardians.

Jill: Correct. I represent both family members and professional guardians.

David: So you have a lot of family members. So you represent, you know, when the family members have concerns, these are the type of people that you represent.

Jill: Correct. Those are the type, you know, a lot of people ask me, how do you determine someone’s incapacitated? It’s kind of just a feeling that you have.

There’s no medical term. There’s no way to determine anything, especially as a lay person, but you kind of know people, you kind of know how they act, and you can see if something’s not right, then, you know, a guardianship, unfortunately, might be needed.

David: And you use the word, unfortunately, because the reason that guardianships are often needed is because people don’t have their proper estate planning documents in place, like a durable power of attorney, which allows people to make financial decisions, a designation of health care surrogate, [00:06:00] which allows people to make health care decisions, and a living will, which sets forth people’s wishes for their end of life decisions.

So while guardianships are necessary, sometimes it’s better to avoid them with proper estate planning documents.

Jill: Absolutely, David. That’s the best way to put it. Look, there are times where you’re going to need a guardianship. There’s times where documents, unfortunately, won’t work or can’t work, or there’s just the situation where you need a guardianship.

But in so many instances, if you would just go and get these documents drafted and completed, you would really avoid a guardianship and make things a lot easier on yourself and your family.

David: That’s a great point, Jill. Well, thank you very much, everyone. That wraps up this week’s video, and I think next week we’re going to be talking about guardianships for minors, and we’ll talk about the difference between adult guardianships, which we just talked about, and then we’ll talk about the different types of guardianships for minors.

Thank you very much.