Avoiding Guardianships
Last Updated: 4/5/2010 10:03:57 PM
Avoiding Guardianship By Dan W. Armstrong
In Florida, every adult is presumed competent. However, if an adult becomes incapable of making decisions due to a disability, a guardian can be appointed for them by the court to act on their behalf. This relationship is called a guardianship between the competent adult (the guardian) and the adult who is no longer capable of taking care of himself or herself (theward).
The guardian is authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship or the requirements of the state, the guardian may or may not need to seek the court's approval for various decisions. Furthermore, some wards may only be incompetent in some areas. As such, a limited guardianship can be granted in which the guardian can only exercise those rights which have been removed from the ward and delegated to the guardian. Since guardianships involve the forfeiture of rights, many states require that less restrictive alternatives imposed if possible. The less restrictive alternatives include: Power of Attorney, Representative or Protective Payee, Conservatorship, and Revocable Trust.
A power of attorney exists when a person (the principal) grants legal rights and power to another (the attorney-in-fact). The attorney-in-fact acts for the principal on financial, business, and other matters. For even more protection, a power of attorney can be limited to only be effective when and if the principle becomes incapacitated.
A representative or protective payee is a person appointed to manage state and federal benefits. On the other hand, a conservatorship is when a person can no longer handle his or her finances and has someone else appointed to handle his or her affairs.
A revocable trust is where a person puts his or her assets in an instrument and the person either assigns himself as trustee of the trust with someone else or a financial institution to take over as trustee when and if he becomes incapacitated or he or she can simply assign someone else or a financial institution as trustee from the start.
Please understand that while this information is accurate, it is not meant to be a legal opinion and you should not act in reliance to this information without speaking with an attorney on the matter. The specific facts of your case could fall under an exception outside the scope of this article.
If you have any further questions, you may chose to search our website; www.danarmstrong.com or contact attorney Dan Armstrong at The Law Offices of Dan W. Armstrong, P.A., 822 A1A North, Suite 303, Ponte Vedra Beach, Florida 32082 or at 904-280-0058.
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