How do you envision your guardian angel? Maybe a soft-glowing aura around a heavenly being with outstretched wings to fly in when you need help. But this mythical creature might not appear when your parent or loved one is unexpectedly incapacitated and unable to make sound decisions. Fortunately, with guardianship of your elderly parents, you can serve as a protector who will help them in the physical and legal world.
How to Get Guardianship Over an Elderly Parent
In Florida, the law allows guardianship of elderly parents who become mentally or physically incapacitated through illness, injury, or other means. The discussion of guardianships assumes a properly executed estate plan with a Durable Power of Attorney and Health Care Power of Attorney already in place. We all know what happens when one assumes something – we make a fool of ourselves, to put it politely.
Unfortunately, less than a quarter of American adults over 55 have a complete estate plan. If there is no estate planning in place (or insufficient planning) to keep family or other loved ones out of court, a guardianship or conservatorship (similar to what existed for Britney Spears) must be established via a court process in the county probate court.
Obtaining guardianship of elderly parents in Florida begins with filing a petition and requesting the court declare the incapacitated person incompetent. In some cases, these types of filings are made “ex parte” or in secret, and guardianship can be established before family or close friends even know what’s happening.
Here are some things to consider before your parent or a loved one becomes incapacitated:
1. Who Will Be Your Parent’s Guardian Angel?
Unless specified in a valid legal document, any family member or other interested person can petition for guardianship—even a close friend can do it if they prove they’re best suited for the position. That said, most courts give preference to the ward’s spouse or other close family members. If a relative or friend is not willing—or capable—of serving, the court will appoint a professional guardian or public guardian.
Guardianship filings can result in heated disputes between family members and friends, who may claim they’d be better suited for the role. Given this, things can get costly very quickly—but the costs pale in comparison to the emotions that are usually involved.
Sometimes, the guardian is required to post a bond, which typically requires good credit and some level of deposit to be held in the event of the guardian’s wrongdoing. This bond requirement can disqualify friends and family who either don’t have good credit or the resources to post a bond.
2. What’s the Guardian’s Responsibility?
It’s important that the chosen guardian fully understands their duties. Depending on the extent of the ward’s mental capacity, a guardian can be given near complete control over a person’s life and finances. How will they make decisions that impact the ward’s future? What help can they offer someone with special needs? You need to take a bit more time to ensure that the person you choose is the right fit for the person who needs assistance.
Guardianship of an elderly parent can place high demands on a person’s time and resources. This is the reason it is crucial to choose someone that you can trust with your parent or loved one’s life—LITERALLY.
Some of the most common duties include:
- Paying the ward’s bills
- Determining where they live
- Monitoring their residence and living conditions
- Providing consent for medical treatments
- Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated
- Managing real estate and other tangible personal property
- Keeping detailed records of all their expenditures and other financial transactions
- Making end-of-life and other palliative-care decisions
- Reporting to the court about the ward’s status at least annually, though it’s typically more often than that.
The extent of duties the guardian is responsible for is up to the court, and the guardian will not be allowed to act in areas the court has not authorized. Moreover, guardians are required to seek the ward’s preferences whenever possible—though ultimately, the decision about what action to take will be in the guardian’s hands.
The court can also divide out responsibilities to multiple parties. For example, one person may oversee the financial decisions, while another handles living arrangements and health-care decisions. Furthermore, the court often requires detailed status reports, such as financial accounting, at regular intervals or whenever important decisions are made, such as the sale of assets.
3. Can Guardians Receive Compensation?
Given the challenging and potentially expensive process of caring for a loved one, guardians are entitled to reasonable compensation based on the ward’s financial ability to pay. The appointed guardian is paid directly from the ward’s estate. However, the compensation is subject to court approval prior to payment. The guardian must carefully account for all of their services, the time spent on tasks on behalf of the ward, and any associated out-of-pocket expenses.
Speak to Us for Help in Getting Guardianship of an Elderly Parent
Serving as a legal guardian is a major responsibility and control over your parent or loved one’s legal and financial affairs. Our parents may not want to think about end-of-life planning or put it off for another day. Unfortunately, this leaves loved ones at greater risk of being taken advantage of and their families in line for major expenses.
It’s better to be prepared than surprised! Now is the time to start planning to ensure that your estate plan is up to date. Email us at [email protected] today or schedule a 15-minute call to get these vital protections in place.