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What Documents are used in Elder Planning and Guardianship Proceedings?

There are many different planning documents that are commonly associated with Elder Planning and Guardianship proceedings.

A Pre-Need Declaration of Guardian designates a preference of who should be Guardian of an incapacitated person. A Guardian is a person, pursuant to a court order who has authority to act on behalf of the incapacitated person, referred to as the “Ward”. The Guardian cannot be legally appointed without court proceedings.

The court may determine, after reviewing the Petition to Determine Incapacity and the written reports of the court appointed examining committee which consists of three (3) people, that a person is declared to have capacity, or be determined to be partially, or totally incapacitated. The court makes this determination at a hearing, in which the proposed Ward, their attorney, and the proposed Guardian and his or her attorney are present. A person who has been determined to be incapacitated retains the right to receive the services and rehabilitation necessary to maximize the quality of life.

Guardianship is a process that involves the potential removal of a persons’ rights. The court can remove certain rights from the Ward or delegate those rights to the Guardian. These rights include the right:

• To marry
• To vote
• To contract
• To travel
• To sue and defend lawsuits
• To have a driver’s license
• To determine his or her residency
• To seek or retain employment
• To personally apply for government benefits
• To consent to medical treatment
• To manage property or to make any gift or disposition of property
• To make decisions about his or her social environment or other social aspects of his or her life

If a person loses only some rights, or only some are delegated to the Guardian, they are deemed partially incapacitated. The court would then enter an Order Determining Partial Incapacity. The court would also enter an Order Appointing Limited Guardian and issue Letters of Partial Incapacity. The purpose of the letters is to give legal authority to the Guardian to act on behalf of the Ward or incapacitated person. It is important to remember that documents, such as a durable power of attorney, preneed declaration of guardian, declaration of health care surrogate, or living will, all must be properly prepared and signed prior to a person being declared incapacitated. Once a person is declared incapacitated, they are no longer able to validly sign any of the above-mentioned documents.

A Guardianship can be of person, property or both person and property. A Guardian’s authority begins when the Letters of Guardianship are issued.

In cases where elder abuse, exploitation, wasting of assets, or emergency health issues are present, an Emergency Temporary Guardianship may be appropriate. The court, after hearing, will appoint an Emergency Temporary Guardian and issue Letters of Emergency Temporary Guardianship. The emergency letters are valid for ninety (90) days from the date they are issued or until a determination of incapacity occurs.

A Guardian may be a family member, relative, friend, or other concerned person of a professional guardian. A professional guardian is a person who renders services to three (3) or more Wards. A professional guardian must, among other requirements, have completed the state required education course, comply with continuing education requirements, and have their fingerprints on file at the clerk’s office. Whether a professional guardian or not, that person must be represented by an attorney, licensed to practice law in the State of Florida.

Before a court removes a person’s rights, the law requires that less restrictive alternatives be first explored. One alternative is a care manager. A care manager is not a guardian, but rather someone who can assist in obtaining health care and other services for the incapacitated person. A care manager has no legal authority to act on behalf of the Ward and has no legal authority over the person designated to act on behalf of another in a Power of Attorney, Durable Power of Attorney, Health Care Surrogate, Living Will, or Do Not Resuscitate Order.

A Do Not Resuscitate Order is when the person, the order applies to, rejects further medical care or attention. This document specifically states that under no circumstances does the person signing the document wish for any medical attention or care to be given to them. If a person has been declared incapacitated, the Do Not Resuscitate Order must be obtained by the court after the petition has been filed and after a hearing. Once a person is declared partially or totally incapacitated by the court, and a Guardianship has been established, the Power of Attorney or Durable Power of Attorney authority ends, and the Guardian is the person who now has authority to act on behalf of the Ward. The court must make a specific finding that the Power of Attorney is rescinded when the Power of Attorney is held by a family member.

Florida Statutes Sections 394.455(12) and 744. 3085 discuss what a Guardian Advocate is and how a Guardian Advocate is appointed. Section 394.455(12) defines a Guardian Advocate as a person appointed by a court to make decisions regarding mental health treatment on behalf of a patient who may be granted specific additional powers by written order of the court.

If you have any questions, or would like to further discuss this, or other Guardianship or Probate Administration matters please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7620 to set up an initial consultation. You may also visit my website at https://www.AnnMarieGildenLaw.com.

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create any attorney client relationship.