Estate planning is often thought of as only dealing with how to distribute property after a person’s death. While disposal of a decedent’s assets is a large part of planning an estate, there are many other considerations, including medical directives and healthcare proxies, along with other types of incapacity planning. One way to deal with an adult person’s incapacity in Florida is through the appointment of a guardian.

According to the Florida Bar, to have a guardian appointed, someone must file a petition with the court that alleges that a person is incapacitated in some respect and present evidence showing such incapacity. Incapacity is an inability to manage some or all of one’s own affairs and can be due to specific physical and mental conditions, or simple aging.

A finding of incapacity is made by a panel appointed by the court consisting of three individuals who form an expert opinion on the subject. These panels often include physicians and one of the members must have a background in the type of incapacity alleged. If the panel finds the individual to be incapacitated, it must be determined whether the incapacity is partial or total.

In the event the court appoints a guardian, the duty of the guardian is to protect the interests of the incapacitated person. Financial institutions generally can only be a guardian for an individual’s property, not the person himself. The guardian of property must use, invest and utilize the ward’s property wisely and for the ward’s care.

The guardian is required to inventory the property and present a financial report to the court every year. A personal guardian makes decisions that the ward cannot regarding the ward’s medical and emotional needs, as well as the best place for the ward to reside and must also file a detailed care plan with the court annually. The guardian must be represented by an attorney, either one appointed by the court or the guardian’s own attorney.

As can be seen, guardians can wield a lot of power over a person who has been declared incapacitated. While there have been recent legislative efforts to improve oversight of guardians, abuses are still reported. For many people, the thought of a judge appointing a stranger to make such basic decisions about their lives is unsettling. Luckily, with a good estate plan, it is possible to designate a pre-need guardian, so that one can have a better chance to have someone they trust assume the responsibility in the case of incapacity. As with any estate planning issue, it may be wise to consult an experienced professional who can aid in ensuring all such documents are executed correctly.

Source: The Florida Bar, “What is Guardianship? Pamphlet,” accessed Aug. 05, 2014