Incapacity planning can prevent a guardianship.
Although I often write about estate planning and taxes, an essential part of our practice also concerns Guardianships. A court will appoint a Guardian of a person if the court determines them to be incapacitated, or “judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.”
Guardianships are often procedures of last resort. They are expensive, and they are intrusive. It is a tough thing to tell a person that they are no longer able to handle their own affairs, and that a court is going to appoint someone to do it for them.
In fact, much of estate planning is incapacity planning. People transfer their property into revocable trusts, execute durable powers of attorney and designations of health care surrogates to avoid having a guardian appointed for them. These documents are known as “less restrictive alternatives” which the court should take into account before declaring a person incapacitated.
But not always.
In Searle v. Bent, which was decided by the second district court of appeal on September 18, 2013, the alleged incapacitated person, Dain F. Searle, had executed such documents. However, her daughter, Anne S. Bent, who was seeking the guardianship filed a “Verified Statement by Interested Person Pursuant to F.S. § 744.331(6)(f).” Although her mother wanted her to get bent, Anne’s affidavit alleged that “her mother’s durable power of attorney and various estate planning documents executed after December 3, 2006, were invalid because of Ms. Searle’s lack of mental capacity, or because the documents were the product of undue influence.”
The court is not required to determine the validity of the challenged documents at this time and renders no opinion on the truth or falsity, sufficiency or insufficiency of the allegations. In accordance with this finding of good faith and reasonable factual basis, the court may not deem the trust, the trust amendment or the durable power of attorney alternatives to the appointment of a guardian. The trial court issued an order finding Ms. Searle to be incapacitated and that based upon the totality of the evidence, her trust, and durable powers of attorney were invalid and thus not a less restrictive alternative to guardianship.
Ms. Searle appealed, claiming that the trial court “effectively invalidated her entire estate plan.” The appellate court agreed with the trial court. Ms. Searle seemed to be arguing that the fact that she executed estate planning documents should prevent a guardianship under any circumstances. This is silly. If she was incapacitated when she executed those documents or being exploited, or the victim of undue influence, then a court can certainly set them aside and establish a guardianship. The trial court didn’t even have to rule if the documents were valid or not.
The trial court was correct in ruling that based upon the evidence, a guardianship was most appropriate, despite the existence of other documents, whether they were valid or not.