A guardianship can be an effective tool to give family members or a professional caretaker the power to make decisions for an adult unable to care for themselves. However, it also gives doctors and the Florida Probate Court the final say over what happens to you in your final days. If that troubles you, you may want to look into some of the alternatives to guardianship in Florida.
When a Florida probate judge appoints a guardian over someone, that means several things:
The decision to take away a person’s autonomy should never be easy. Courts examine petitions for guardianship very closely, relying on a panel of experts to review the person’s health and mental condition before making a ruling.
However, once they do, ending a guardianship, especially a permanent guardianship, can be very difficult. Someone -- either the incapacitated person’s attorney or another interested party -- must file a “Suggestion of Capacity” and prove that the restrictions on a person’s autonomy are no longer needed. That is why Florida probate law requires judges to look for less restrictive alternatives before granting the petition and naming a guardian to act on the incapacitated person’s behalf.
Most of the less restrictive alternatives to guardianship considered by the court are forms of estate planning. When set up ahead of time, these documents give guidance to courts and family members about what a person wants to happen when they become incapacitated, and who they would want making those decisions for them.
A durable power of attorney is a document prepared in advance that authorizes a specific person to make financial and legal decisions on your behalf. A durable power of attorney can give a family member, friend, or professional of the grantor’s choice (such as a case manager or geriatric care manager) the authority to:
Generally, the durable power of attorney is a good alternative to guardianship when the person’s lack of capacity has to do with reasoning, making prudent decisions, or memory. However, it can also be a convenient way for a caregiver to step in when mobility becomes difficult.
Unlike a guardianship, a durable power of attorney does not cut off the incapacitated person’s authority to act on their own. This makes it easier for the grantor to step back into the decision making role when they are able. However, it also means that the person retains authority to spend their own money or make their own decisions, which can cause problems in some families.
Some families benefit from the creation of a revocable trust. In addition to many estate planning benefits, a trust can also provide a less restrictive alternative to guardianship. Every trust includes a designation of trustee -- who will be the one responsible for making decisions about the trust’s assets and signing the checks. In a revocable trust, the first trustee is usually the grantor. However, the document will also name alternate trustees who can step in when the grantor dies or becomes incapacitated.
The passing of trustee authority can happen automatically, often with a letter from the grantor’s doctor. It doesn’t require a court order, so the grantor’s health condition remains private. Unlike the durable power of attorney, the authority to manage the trust passes from grantor to successor trustee, which avoids the problem of an incapacitated grantor committing poor financial decisions. Depending on the language in the trust documents, a successor trustee’s authority can revert when a grantor’s incapacity is over. This gives a trust more flexibility than guardianship and more control than a durable power of attorney, when it comes to handling the family’s financial affairs.
When a probate judge is looking for alternatives to guardianship in Florida, there are really two different issues involved:
Durable powers of attorney and alternative trustee designations both address the first issue. However, if the question is who will decide whether Mom needs to move into a nursing home or how invasive Dad’s cancer treatment should be, the alternative is a designation of health care surrogate. This form names the person who can speak to doctors and make medical decisions on the grantor’s behalf.
A health care surrogacy takes effect based on the decision of the grantor’s primary care physician. It does not require a court order. However, while a health care surrogate can authorize medical care, they can’t use the patient’s money to pay for it. If a person is fully incapacitated, the health care surrogate and the power of attorney or trustee will need to work together to make sure they receive the care they need to recover or live out their days comfortably.
By doing the work of creating a thorough estate plan while you are healthy, you can give the court less restrictive alternatives to guardianship when your health fails you. These designations can ensure that decisions about your health, wellbeing, and finances are made by people you trust to honor your wishes and carry them out with respect.
At Harrison Estate Law, P.A., our Florida estate planning and guardianship attorneys can help you plan for or respond to a debilitating illness, accident, or condition. We will help you create or review an existing estate plan, identifying less restrictive alternatives, and advocate for guardianship when those options aren’t enough to protect you and your family. Contact us here or call 352-559-9828 to get help today.