Guardianships are expensive; avoid them.

A guardianship is expensive.  Avoid it if possible.  Chapter 744, Florida Statutes, is called the Florida Guardianship Law.  It is lengthy, complicated and something you would rather not become entangled with.

One hundred years ago the prospect of becoming mentally incapacitated was less likely, barring an unforeseen injury.  Today, with advances in medical science, our bodies are ever more likely to outlast our minds.  In those instances, if you have bills to be paid or assets to be managed, you will need someone to step in on your behalf.  Who will it be?  If you have not planned ahead, your loved ones may be forced to seek a guardianship, and thus wade through the mire of the Florida Guardianship law.  More worryingly, the legal fees and costs they incur will in all likelihood far out distance the cost of setting out your wishes in advance.

The Florida Legislature would prefer that you do a little advanced planning.  In Section 744.1012(2), Florida Statutes, the legislature states that “alternatives to guardianship and less restrictive means of assistance” should be explored before the appointment of a guardian.  Likewise, when a court does adjudicate someone to be incapacitated, the judge “must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person.”  Section 744.331(6)(b), Florida Statutes.

How can you avoid a guardianship?  There is no full proof method as there is always a possibility that circumstances conspire to necessitate one.  But in Florida, you can take steps now which will, hopefully, save your family heartache and great expense, while also ensuring that your wishes are honored.  The following four solutions, when adopted with the advice of counsel, are often considered:

  1. Appoint a spouse or loved one to manage your assets/financial affairs via a durable power of attorney (see Chapter 709, Florida Statutes);
  2. Appoint a spouse or loved one to manage your healthcare via either a healthcare power of attorney or a healthcare surrogate (see Section 709.2201(2)(c) and Sections 765.201-765.205, Florida Statutes);
  3. Sign a living will expressing your desires regarding life-prolonging procedures (see Sections 765.301-765.309, Florida Statutes); and
  4. Execute a declaration identifying who you want to serve as your guardian if one becomes necessary (see Section 744.3045, Florida Statutes).

These steps require more than a Google search.  I have seen many healthcare surrogates and powers of attorney which are the product of a late night internet stroll.   They are sometimes ineffective and more often unfit for the client’s needs.  The law in this area is complicated and should be explored with the assistance of an attorney rather than one one’s own.

There is a saying that an ounce of prevention is worth a pound of cure.  Its truth is proven time and again in the area of guardianship avoidance.

Post Date: May 27, 2016

By: Robert C. Chilton

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