What is a Guardianship?

Written by Collett P. Small, Esquire on . Posted in Guardianship

A guardianship is the legal relationship that is created when a surrogate is appointed by a court to protect and exercise the rights of individuals whose disabilities prevent them from being able to make their own decisions and no lesser restrictive means of intervention are available. The person who is the subject of the guardianship is called a "ward". Except in the case of a minor, the ward must be adjudicated legally incapacitated and has had some or all of his or her rights removed. Rights which may be removed and delegated to a guardian include the following: the right to contract, to apply for government benefits, to sue and defend lawsuits, to manage property, to gift or dispose of property, to determine residence, to consent to medical or mental health treatment, and to make decisions concerning one's social environment. However, some rights such as the right to marry or to obtain a driver's license may not be delegated to a guardian.

A guardianship is appropriate to provide protection when an incapacitated person or his or her property is at risk of harm or abuse either from himself or herself or others and there are no other acceptable alternatives to guardianship. Because the ward will have rights removed, guardianships are an extraordinary procedure. While a guardianship may be necessary there is always the possibility for abuse. Consequently, all guardianships are subject to court supervision and all guardians must comply with certain requirements. In order to ensure the guardian is acting in accordance with the law, Florida Statutes require guardians to submit reports to the court. These reports help the court to supervise the affairs of the ward and to monitor the actions of the guardian. Failure to comply with any requirement may result in the guardian having to appear before the court to explain his or her failure to properly fulfill his or her duties. This may result in sanctions against the guardian including, possible removal.

There are several types of guardianships including the following: Guardianship of the Person, Guardianship of the Property, Guardianship of the Person and Property, Guardianship of a Minor, Public Guardianship, Veterans' Guardianship, Voluntary Guardianship, Emergency Temporary Guardianship, Plenary Guardianships and Limited Guardianships.
There are advantages to a guardianship. Foremost, the ultimate goal is to provide protection for a vulnerable person. Additionally, Chapter 744 Florida Statutes, Florida Probate Rules and Florida Rules of Court all mandate that attorneys, guardians and the court act in the best interests of the ward, minor, or person who is alleged to be incapacitated
There are also several disadvantages to a guardianship. Because of the ongoing monitoring and reporting requirements, guardianships tend to be expensive. The process can also be quite stressful for the ward especially, as it involves the removal of rights. Furthermore, while the guardian must make decisions that are in the ward's best interest, these decisions may necessarily not be in accordance with the wishes of the ward.

Fortunately, with proper planning there are several alternatives to guardianship. These alternatives include durable power of attorney, trust, health care surrogate or proxy, or other form of pre-need directive. These may avoid the need for a guardianship if properly drafted and found by the court to be appropriate. If you have any questions regarding setting up a guardianship or avoiding a guardianship, do not hesitate to consult with an experienced Elder Law attorney in your area.