A Tale of Two Guardianships
One afternoon recently I had the opportunity to meet with two different families regarding the need for obtaining a guardianship over a family member of each family. These were two totally unrelated families, with totally different circumstances, other than they happended to be scheduled for back to back appointment with me in my office.
The factual situation for the first family was that their 76 year old mother recently experienced a serious stroke. A woman who was robust, active, and "totally healthy" in all appearances, was suddenly the victim of a stroke that eliminated her ability to speak, or act on her on. The prognosis is that she will, perhaps, recover to the point that she can dress herself one day. She is now confined to a skilled nursing facility, where she will most likely remain for her lifetime.
The second family involved the husband of my new client. It is unclear what triggered the event, possibly a stroke, but for whatever reason, the husband began to engage in extremely unusal conduct and was clearly mentally disturbed. Within the three weeks prior to the consultation with me, the husband was the subject of Baker Act (the Baker Act allows the involuntary confinement of some one who is a danger to themselves or others) proceedings on two separate occasions.
Both families sought consultations to obtain what is called a plenary guardianship over the person and property of the mother and, in the second case, the husband.
A plenary guardianship is a court supervised proceeding where a circuit court judge appoints an individual, or a corporate fiduciary, to become the guardian of the person and the property of an incapacitated person. In a "plenary" guardianship, the incapacitated person (the "ward"), loses all of his or her civil and legal rights, and is subject to the control of the court and the court appointed guardian.
The court may also establish a "limited" guardianship that provides for specified limited areas of control by the court and the court appointed guardian. Other alternatives provide for appointment of a guardian of the property, where the ward may have the ability to make non-financial decisions and needs help only in the area of protecting or managing his or her assets and financial affairs; and a guardian of the person, where there is no need for managment of the financial affairs for some reason (for instance, a revocable living trust has been established and all assets are titled to the living trust), but the ward is not capable of decision making or management of his or her personal and medical needs.
After a plenary guardianship is established, the court appointed guardian has the responsibility to collect and take control of all of the assets of the ward, provide for the appropriate level of personal care for the ward, and provide periodic reports to the court. Any signficant action on behalf of the ward is subject to court control and approval.
A guardianship is a very serious undertaking. The first step in a guardianship is to determine that the proposed ward is legally incompetent, either mentally, physically, or both. When the ward's legal incompetence is established through statutorily prescribed measures, the court enters and order determining the incapacity of the ward and appoints a guardian. The person who is established to be legally incompetent, essentially loses all of their civil and legal rights, including the right to vote, to marry, to contract, to decide on their own medical treatment, or to make their own decisions about their financial affairs, among other rights that are lost.
To establish the right and need for a guardianship, the proposed guardian must show that there is no "less restrictive" alternative to the guardianship to meet the needs of the proposed ward. If there is a less restrictive alternative, the court is obligated to pursue that alternative rather than establish a plenary guardianship. Accordingly, a legal guardianshiop may be avoided if the incapacitated person has engaged in proper estate planning prior to the occurrence of the action or event that precipitated the need for the guardianship.
And, therein lies our Tale of Two Guardianships.
In the case of the first family above, the mother who suffered the stroke did not have in place what we estate planning lawyers call "advance directives." The second family did have advance directives in place.
In the first case, it was necessary to immediately begin the process to have the mother declared by the court to be legally incompetent so that a plenary guardianship could be established, naming one of her daughters as the guardian. Upon appointment as plenary guardian, the daughter will be required to file periodic reports with the court for her mother's remaining life (unless her mother should miraculously recover her mental faculties). Any significant action involving her mother will be subject to court control and approval.
In the second case, the husband had established advance directives: a durable power of attorney, a designation of health care surrogate, and a living will, all naming his spouse as his attonrey in fact and health care surrogate. We explained to our client how to obtain the necessary affidavits from her husband's physicians to establish for purposes of the durable power of attorney and designation of health care surrogate that her husband was incapacitated. The durable power of attorney was not as detailed and complete as we might have like to have seen, but it should be adequate to allow the wife to avoid the necessity of establishing the plenary guardianship, which would subject her husband's assets to the control of the court, and require her to provide the court with periodic reports and accountings. The designation of health care surrogate should provide her with the necessary authority to obtain control over her husband's medical decision making without the necessity of court intervention. With the advance directives, she will have the ability to handle her husband's financial and medical affairs, at less cost, less inconvenience, and more flexibility, wihtout the need for filing reports with the court or seeking court direction on the matters most personal to her and her husband.
A plenary guardianship may also be avoided through the proper use of a revocable living trust, and its proper funding.
Without advance directives in place before they are needed, there typically is no "less restrictive" alternative to a plenary guardianship available, and the guardianship is necessary. By planning in advance, a plenary guardianship may be avoided saving your family substantial expense, time consuming reporting, and the lost of flexibility and control.
Both of these families will now have a family member who very likely will require skilled nursing care in a skilled nursing facility for an extended period of time. In both cases, we are now engaged in developing appropriate Medicaid spend down plans, so that the incapacitated individuals can become eligible for Medicaid benefits as soon as possible. Medicaid planning will allow the families to legally maximize the value of the incapacitated person's assets and income for the incapacitated individual and their family members.
So, the Tale of Two Guardianships tells us, it is always best to be prepared for the worst, by engaging in appropriate estate planning, including a fully fleshed out set of advance directives.
The factual situation for the first family was that their 76 year old mother recently experienced a serious stroke. A woman who was robust, active, and "totally healthy" in all appearances, was suddenly the victim of a stroke that eliminated her ability to speak, or act on her on. The prognosis is that she will, perhaps, recover to the point that she can dress herself one day. She is now confined to a skilled nursing facility, where she will most likely remain for her lifetime.
The second family involved the husband of my new client. It is unclear what triggered the event, possibly a stroke, but for whatever reason, the husband began to engage in extremely unusal conduct and was clearly mentally disturbed. Within the three weeks prior to the consultation with me, the husband was the subject of Baker Act (the Baker Act allows the involuntary confinement of some one who is a danger to themselves or others) proceedings on two separate occasions.
Both families sought consultations to obtain what is called a plenary guardianship over the person and property of the mother and, in the second case, the husband.
A plenary guardianship is a court supervised proceeding where a circuit court judge appoints an individual, or a corporate fiduciary, to become the guardian of the person and the property of an incapacitated person. In a "plenary" guardianship, the incapacitated person (the "ward"), loses all of his or her civil and legal rights, and is subject to the control of the court and the court appointed guardian.
The court may also establish a "limited" guardianship that provides for specified limited areas of control by the court and the court appointed guardian. Other alternatives provide for appointment of a guardian of the property, where the ward may have the ability to make non-financial decisions and needs help only in the area of protecting or managing his or her assets and financial affairs; and a guardian of the person, where there is no need for managment of the financial affairs for some reason (for instance, a revocable living trust has been established and all assets are titled to the living trust), but the ward is not capable of decision making or management of his or her personal and medical needs.
After a plenary guardianship is established, the court appointed guardian has the responsibility to collect and take control of all of the assets of the ward, provide for the appropriate level of personal care for the ward, and provide periodic reports to the court. Any signficant action on behalf of the ward is subject to court control and approval.
A guardianship is a very serious undertaking. The first step in a guardianship is to determine that the proposed ward is legally incompetent, either mentally, physically, or both. When the ward's legal incompetence is established through statutorily prescribed measures, the court enters and order determining the incapacity of the ward and appoints a guardian. The person who is established to be legally incompetent, essentially loses all of their civil and legal rights, including the right to vote, to marry, to contract, to decide on their own medical treatment, or to make their own decisions about their financial affairs, among other rights that are lost.
To establish the right and need for a guardianship, the proposed guardian must show that there is no "less restrictive" alternative to the guardianship to meet the needs of the proposed ward. If there is a less restrictive alternative, the court is obligated to pursue that alternative rather than establish a plenary guardianship. Accordingly, a legal guardianshiop may be avoided if the incapacitated person has engaged in proper estate planning prior to the occurrence of the action or event that precipitated the need for the guardianship.
And, therein lies our Tale of Two Guardianships.
In the case of the first family above, the mother who suffered the stroke did not have in place what we estate planning lawyers call "advance directives." The second family did have advance directives in place.
In the first case, it was necessary to immediately begin the process to have the mother declared by the court to be legally incompetent so that a plenary guardianship could be established, naming one of her daughters as the guardian. Upon appointment as plenary guardian, the daughter will be required to file periodic reports with the court for her mother's remaining life (unless her mother should miraculously recover her mental faculties). Any significant action involving her mother will be subject to court control and approval.
In the second case, the husband had established advance directives: a durable power of attorney, a designation of health care surrogate, and a living will, all naming his spouse as his attonrey in fact and health care surrogate. We explained to our client how to obtain the necessary affidavits from her husband's physicians to establish for purposes of the durable power of attorney and designation of health care surrogate that her husband was incapacitated. The durable power of attorney was not as detailed and complete as we might have like to have seen, but it should be adequate to allow the wife to avoid the necessity of establishing the plenary guardianship, which would subject her husband's assets to the control of the court, and require her to provide the court with periodic reports and accountings. The designation of health care surrogate should provide her with the necessary authority to obtain control over her husband's medical decision making without the necessity of court intervention. With the advance directives, she will have the ability to handle her husband's financial and medical affairs, at less cost, less inconvenience, and more flexibility, wihtout the need for filing reports with the court or seeking court direction on the matters most personal to her and her husband.
A plenary guardianship may also be avoided through the proper use of a revocable living trust, and its proper funding.
Without advance directives in place before they are needed, there typically is no "less restrictive" alternative to a plenary guardianship available, and the guardianship is necessary. By planning in advance, a plenary guardianship may be avoided saving your family substantial expense, time consuming reporting, and the lost of flexibility and control.
Both of these families will now have a family member who very likely will require skilled nursing care in a skilled nursing facility for an extended period of time. In both cases, we are now engaged in developing appropriate Medicaid spend down plans, so that the incapacitated individuals can become eligible for Medicaid benefits as soon as possible. Medicaid planning will allow the families to legally maximize the value of the incapacitated person's assets and income for the incapacitated individual and their family members.
So, the Tale of Two Guardianships tells us, it is always best to be prepared for the worst, by engaging in appropriate estate planning, including a fully fleshed out set of advance directives.
Posted by Randy Coleman at 10/20/2009 6:47 AM 
Categories: Homestead Protection,Medicaid Planning,Living Will,Designation of Health Care Surrogate,Estate Planning,Do Not Resucitate Order,Advance Directives in Florida,Durable Power of Attorney,Titling of Assets,Health Care Power of Attorney
Tags: Jacksonville elder law attorney guardianship law durable power of attorney guardianship of the property titling of assets Medicaid planning attorney guardianship of the person health care power of attorney guardianship attorney advance directives wills lawyer Jacksonville Medicaid planning attorney designation of health care surrogate beneficiary designation wills and trusts Medicaid spenddown plan living trusts estate planning plenary guardianship
Categories: Homestead Protection,Medicaid Planning,Living Will,Designation of Health Care Surrogate,Estate Planning,Do Not Resucitate Order,Advance Directives in Florida,Durable Power of Attorney,Titling of Assets,Health Care Power of Attorney
Tags: Jacksonville elder law attorney guardianship law durable power of attorney guardianship of the property titling of assets Medicaid planning attorney guardianship of the person health care power of attorney guardianship attorney advance directives wills lawyer Jacksonville Medicaid planning attorney designation of health care surrogate beneficiary designation wills and trusts Medicaid spenddown plan living trusts estate planning plenary guardianship
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