Guardianships of Incapacitated People

Our Senior Partner, Jill Ginsberg, focuses a majority of her practice on protecting some of the most vulnerable members of society from abuse and exploitation. She does this through the Guardianship process. When many people hear the term “Guardianship,” they think of guardianships of minor children, but that is only one type of “guardianship”. Jill’s focus is on adults who can no longer take care of themselves and may need protection from abuse or exploitation.

When and Why Might a Guardianship Be Needed?

With proper and timely estate planning, you can appoint someone of your choosing to handle your affairs and to make health care decisions for you in the event you can no longer make them for yourself. This is done by appointing an agent or attorney-in-fact under a Durable Power of Attorney for “checkbook” and other personal decisions, and a Health Care Surrogate for medical decisions. A Power of Attorney or a Health Care Surrogate most often come into effect when an elderly person is not able to make decisions anymore due to Alzheimer’s disease, senile dementia, or frailty. However, it’s not just senior citizens. Illnesses can befall anyone at any age – as can car accidents or other maladies which can cause incapacity.

Unfortunately, over half the population either do not have these simple documents in place, or the person they appointed as their agent isn’t making the right decisions for them. The agent may be too busy, is not local, or is otherwise unable to handle the duties. Managing another person’s entire life is a lot of work! In the worst case scenarios, the appointed agent, or someone else close to the frail person, is exploiting them. This can include misappropriating – stealing – their assets. In some cases, the appointed agent or a member of the family is keeping the infirm relative away or isolating them from other family members. In other cases, the agent is not properly taking care of the principal’s health care. Vulnerable elders are more likely to be abused by members of their family than by strangers or caretakers.

When a person either does not have proper advance directives in place, or if the Power of Attorney or designation of Health Care Surrogate is not sufficient, then a guardianship may be necessary. Without a guardianship, the hospital might not allow anyone to make decisions for them, and the bank will not allow anyone to pay their bills.

A guardianship is a court-supervised process in which a person is declared incapacitated and a guardian is appointed by the court on their behalf. It can be intrusive and expensive, but is the only way to protect an incapacitated person from calamity.

Jill Ginsberg is an expert on guardianships. She is board certified by the Florida Bar in Elder Law and focuses much of her practice on helping protect the most vulnerable in our society.

The Guardianship Process

The first step in a guardianship is for someone who is concerned that an alleged incapacitated person (AIP) is unable to manage their own affairs, or is being financially exploited or abused, to file a Petition to Determine Incapacity with the Court. The petitioner must hire an attorney, like Jill, to draft and file the Petition. This Petition sets the guardianship process in motion.

After the Petition for Incapacity is filed, the Court appoints an another attorney to represent the AIP. If the Court later finds that the AIP is incapacitated, then some or all of their rights will be taken away from them. This includes the right to make health care decisions, to contract, to manage their own assets, to vote, to choose where to live, and to choose who to associate with. So, you can see why the AIP would need their own attorney.

In addition to appointing an attorney for the AIP, the Court also appoints a three-person examining committee which always includes a psychiatrist, a psychologist, and a social worker. It is their job to separately interview and examine the AIP and report to the Court on whether, in their opinion, the AIP is incapacitated.

Sometimes, it is obvious as to whether or not the AIP is incapacitated. If they are in a coma, or in advanced stages of dementia, everyone agrees and works together to appoint a guardian to best take care of the ward. This is known as an uncontested guardianship. Other times, it is unclear as to whether or not the AIP is incapacitated. There may be disagreement among the examining committee. Often the AIP may have moments of lucidity in which they can state for themselves that they do not think that they need a guardian. These cases are known as contested guardianships, and often involve more extensive litigation.

Assuming the alleged incapacitated person is found to be incapacitated after an incapacity hearing, they are now referred to as the “ward.” The next step is to petition the court to appoint a guardian on the ward’s behalf. In many circumstances, the person who filed the petition to determine incapacity also petitions to be appointed guardian. But, just like being an agent under a Power of Attorney or Health Care Surrogate is a lot of work, being a person’s guardian is especially a lot of work. In these cases, a professional guardian can be appointed. Jill represents a number of professional and family guardians, and she works together with them to best protect their wards. In other cases, multiple people will file competing petitions to be appointed guardian of the ward. For example, an elderly woman’s son and daughter will both want to be guardian, and not trust the other. This is another type of contested guardianship.

Ongoing Guardianship Administration

After filing the Petition for Incapacity, the committee examining the AIP, the incapacity hearing, the petition to appoint a guardian (and a few other things we left out!), a guardian is finally appointed for the ward. The Court can appoint a guardian of the ward’s person, guardian of the ward’s property, or both. Also, the Court can make the guardianship a plenary guardianship, in which all of the ward’s rights are taken away, or a limited guardianship in which only some of the ward’s rights are removed.

This is not the end of the process, but the beginning! Now the real work begins. Jill assists the Guardian in their duties. Remember the Guardian is now responsible for running the ward’s life.

These responsibilities could involve:

• Marshalling the Ward’s assets and gathering their accounts
• Paying their bills
• Maintaining their property
• Finding a new place for them to live
• Managing their geriatric and other health care
• Suing people who absconded with their assets
• Everything else the ward could have done if they had capacity.

Additionally, unlike an agent under a Power of Attorney or Health Care Surrogate, a Guardian is supervised by the Court. The Guardian is required to submit annual accountings and reports to the court, which Jill helps the Guardian complete.

We really hope you come see us before you need a guardianship so we can do proper estate planning for you. If you have a loved one who can no longer take care of themselves, or is being exploited, then please contact Jill Ginsberg, an expert in this field, for guidance.