What are Guardianships?

For persons who, due to physical or mental disabilities, are unable to responsibly attend to their financial or health care matters, the law provides a safety-net to protect them. This system is referred to as guardianship.  With roots going back to medieval times, the judicial guardianship system is designed to assure court supervision of the welfare of vulnerable individuals.

There are a variety of types of "guardianships" depending on the situation.  For example, parents of minor children are considered "natural" guardians for their children; children involved in a legal proceedings may have a "guardian ad litem" appointed to protect their interests; and, for persons with mental health issues, a "guardian ad litem" may be appointed to make treatment decisions for them.

At Advocates in Aging, the kind of guardianship proceeding we most often encounter concerns addressing the needs of someone who, due to some physical or psychological challenge, needs court intervention to protect them. Often, a guardianship intervention is required when the person has not signed a Power of Attorney or Health Care Directive appointing someone to take care of their affairs.  However, guardianship may also be required where the individual appointed as power of attorney or health care agent procurred the authority improperly or is misusing that authority. This becomes especially important in cases where the individual was suffering from some cognitive challenge such as dementia and can't monitor what the agent is doing. 

It is also important to bear in mind that even if an individual has signed a power of attorney or health care document, if they now refuse to cooperate with the agent, a guardianship may still be required.  This often comes as a shock to families who took the preventative steps of securing the recommended power of attorney and now find that it can't be used to override the person's directions.  For example, often a person with dementia will strenuously resist a nursing home placement.  The family expects that they can simply use the authority of the power of attorney to force the placement. This, to their chagrin, is not the case.  When a person signs a power or attorney, they have not given up their right to make their own choices.  Unless and until a court removes that person's legal right to make decisions, he or she retains those rights.  If the person is experiencing the effects of dementia, for example, they may be unable to understand that they are no longer making appropriate or safe decisions. In those cases, guardianship may be necessary.

How Does a Guardian Get Appointed?

The first step in having a guardian apppointed for a vulnerable person is the determination of whether and in what respects they are incapacitated.  The proponent of the guardianship begins the process by filing a petition with the court requesting that an indivdual's capacity be dermined by the court.  The petition must set forth the basis for suspecting that the person's capacity is questionable. For example, the person is not paying their bills, or neglecting a serious medical need, or unable to protect themselves from scam artists.  An interesting aspect of the filing of a Petition to Determine Incapacity is that unless the Court rules otherwise, the mere filing of the Petition suspends all powers of attorney (although health care powers remain intact unless taken away).

When the Petition to Determine Incapacity is filed, the Court does two things:  first, In order to safeguard the vulneralbe person's right to due process, he or she may be entitled to notice of and ability to attend all legal proceedings related to the guardianship.  In addition, the vulnerable person must obtain representation by an attorney.  The court will generally appoint an attorney to represent the individual. The person can substitute thier own lawyer if they choose to.  Secondly the Court will appoint a committee of three persons who must go visit the person alleged to be incapacitated, interview them and report back to the Court.  The committee consists of a psychiatrist or physcian and the others are generally therapists, gerontologists, nurses or social workers.

The Examining Committee is required to identify from a pre-established set of critera, what functions the peson  is unable to perform.  Amoung this are handling finances, making informed decisions about their health care, residence, social contacts, etc.  Then the Committee reports on what legal rights the individual is unable to perfom such as the right to decide where to live, how to spend money, to gift money or to enter into a contract.  If the Court finds that the person indeed lacks the capacity ot exercise the rights identified by the committee, the Court literally removes the rights of the person.  This loss of rights is often permanent, although they can later be restored upon a finding that the person has regained the lost abilities and thde court restores legal capacity.

Appointment of a guardian can materially limit the rights and privledges of the protected individual in areas such as:

  • choosing residence
  • providing informed consent to medical treatment
  • making end-of-life decisions
  • making property transactions
  • obtaining a drivers license
  • owning, possessing, or carrying a firearm
  • filing or defending lawsuits
  • marriage
  • voting

Once the Court takes a person's rights aways, it will then transfer those rights to a guardian.  For example, looking at the preceeding list, most of those rights would be transferred to the guardian.  However, certain personal rights, such as marriage, voting or driving are not delegable to the guardian.

The Court will appoint a qualified individual to act as guardian.  Often this is a family member or friend.  However, if there are more than one person vying for appointment, especially in a family conflict situation, the Court may appoint an independent, professional fiduciary.

Our law firm routinely works with seniors and their loved ones to determine the best course of action, file the required paperwork and represent them in proceedings with the appropriate administrative agencies. We also work with the guardian to assure their compliance with Court requiered accountings and other reports.



With an office in Sarasota, FL Advocates in Aging: Law Office of Ira Stewart Wiesner serves clients throughout Sarasota, Bradenton, Venice, Port Charlotte, Sarasota County, Manatee County, DeSoto County, & Charlotte County.

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