Guardianships are created by the courts to make decisions for people who can't make their own decisions. THELAW.TV asked Pembroke Pines, Fla., estate planning attorney Collett Small to explain the basics of guardianship law. The article below is based on Florida law, but the laws on guardianship differ from state-to-state. Always contact an attorney licensed to practice law in your state if you need to create a guardianship.
What is the difference between a guardianship and a power of attorney?
A guardianship is a legal proceeding in which a guardian is appointed by the court in order to exercise the legal rights of someone who has been found to be incapacitated. The incapacitated person is known as a ward. The guardian is ordered by the court to work to maintain the ward and/or his or her property. The appointment of a guardian may mean that the ward will be deprived of some of his or her rights. On the other hand, a power of attorney is a document that is executed by a competent person and does not require court proceedings. A power of attorney must be executed by someone with the legal capacity to do so and gives someone else, attorney-in-fact, the right to make certain decisions on behalf of the person who is signing, the principal. The principal does not relinquish any rights over to the attorney-in-fact, but rather just authorizes him or her to make decisions on the principal's behalf.
What is the procedure for appointing a guardian?
First, a petition is filed by a competent adult seeking to have someone declared incompetent. Once the petition is filed, the court will appoint an examining committee and an attorney for the allegedly incapacitated person. The examining committee will be made up of three persons, one of which must be a physician or psychiatrist, who will conduct individual examinations of the allegedly incapacitated person and report their findings to the court.
Second, there will be a hearing in which the court will review the findings of the examining committee in order to determine whether the allegedly incapacitated person is in fact incapacitated. Before deciding to appoint a guardian, the court will first determine whether there are other less restrictive ways to provide assistance to the incapacitated person without removing his or her rights.
Finally, if the court determines that there is no less restrictive manner to help the incapacitated person, a guardian will be appointed. The court will appoint the guardian and issue Letters of Guardianship stating which rights are to be removed from the ward and become the responsibility of the guardian.
What are the duties and responsibilities of a guardian?
A guardian may be required to submit to financial and criminal background investigation if the court determines it to be necessary. Florida law requires a guardian to complete a training course within four months of being appointed as guardian. A guardian is required to retain an attorney licensed to practice law in Florida.
The court also requires certain reports to be filed at the initiation of the guardianship as well as annual reports. Within 60 days after the Letters of Guardianship are issued, a guardian of the person must file an Initial Plan for the ward that will be based on the recommendations of the examining committee. It must include information regarding plans for the ward's mental and medical services, personal care, and residential determinations. A guardian of the person is also required to file an Annual Plan outlining the ward's current location and condition and any plans for changes in the upcoming year. The guardian must also provide a report from the ward's physician as an updates on the health and capacity of the ward. A guardian of the property must submit an Initial Inventory within 60 days of the issuance of the Letters of Guardianship. The Initial Inventory must include a list of all of the ward's assets and property as well as their location and any income that the ward is to receive such as interest on accounts or social security benefits. A guardian of the property must also file an Annual Accounting to show any disbursements of the assets or property of the ward as well as the year-end statement for any bank accounts.
The author, Collett Small, is a Pembroke Pines, Fla., estate planning attorney.