Written by attorney Astrid de Parry

When is guardianship necessary for the elderly?

As our aging population continues to grow, more and more families are faced with tough questions concerning their incapacitated family members. Often, a guardianship is considered to resolve these questions. Guardianship is a legal proceeding that protects incapacitated persons and their property by transferring all or certain rights from them to someone who is better suited to care for the person’s physical and financial needs. It is important to understand when guardianship is necessary for the elderly, because not only is guardianship an expensive process, it also can be very disruptive to the lives of the entire family.

1. The incapacitated person does not have sufficient estate planning documents.

Under Florida law, guardianship Courts must seek the least restrictive means necessary to protect incapacitated persons. As result, guardianship may not be needed if the incapacitated person properly executed a Durable Power of Attorney, and designation of Health Care Surrogate. A Durable Power of Attorney can give an agent authority to handle the incapacitated person’s financial affairs. A Health Care Surrogate designation gives the surrogate the ability to make health care decisions on behalf of the incapacitated person. Either of the aforementioned estate planning documents may be adequate to resolve problems families face. An attorney who practices elder law or estate planning can help determine whether the estate planning documents are sufficient to avoid guardianship proceedings.

2. The family is not in agreement about how to care for the incapacitated person and/or his finances.

If family members cannot agree about how to care for their incapacitated family member, a guardianship may be necessary. Guardianship Courts can appoint a guardian of the person, property or both, depending on the circumstances. A guardian of the person is charged with ensuring the incapacitated person is properly cared for and protected from exploitation and self-neglect. A guardian of the property is responsible for the incapacitated person’s finances. The guardian must work with the incapacitated person and his family to serve the person’s best interests.

3. The incapacitated person refuses to follow the family’s care plan.

It is important for care providers and family members to attempt to work with incapacitated persons to make decisions concerning their care and finances. While a family may have the best intentions concerning the care of the incapacitated person, the person may still resist. If the incapacitated person is in danger of hurting himself or his finances and will not accept assistance from caregivers or family members, then a guardianship may be necessary.

4. The incapacitated person is vulnerable to exploitation.

A guardianship may be necessary when estate planning documents and family members cannot protect incapacitated persons from financial exploitation, abuse or self-neglect. For example, a guardianship is needed if the agent authorized to act under the incapacitated person’s Durable Power of Attorney is using his power to financially exploit the incapacitated person. Another common example of abuse occurs when someone hired to render care or aid to an incapacitated person begins to physically abuse or financially exploit the incapacitated person. Often, incapacitated persons in this circumstance refuse to see themselves as victims, and instead believe the caregiver is a friend, lover or trusted individual. In these situations, guardianship proceedings are necessary to protect incapacitated persons.

Please contact the Department of Elder Affairs Abuse hotline at 1-800-96-ABUSE (1-800-962-2873) to report suspected abuse, neglect or exploitation of the elderly or a vulnerable adult.

Where can you turn for help?

If your family is struggling to determine how to best care for an incapacitated family member, there are resources that can help. Contact your local Area on Aging or Council on Aging office, or visit the Department of Elder Affairs' web site, to find out how to get help. If you need assistance determining the value of incapacitated person’s estate plan, life care plan or whether a guardianship is necessary, seek out an elder law attorney in your area. Caregiving for incapacitated persons can be challenging, but you do not have to face it alone.

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