Understanding Guardianship: A Guide by Garrity Traina

Providing Comprehensive Estate Planning Services since 1983

For individuals who, due to physical or mental disabilities, are unable to responsibly handle their financial or healthcare matters, there exists a safety net in the form of guardianship. Dating back to medieval times, the judicial guardianship system ensures court supervision of vulnerable individuals’ welfare.

At Garrity Traina, we frequently encounter guardianship proceedings that aim to address the needs of individuals requiring court intervention. Different types of guardianships exist to accommodate various situations. For instance, parents of minor children are considered “natural” guardians, while children involved in a legal proceeding may have a “guardian ad litem” appointed to safeguard their interests. Similarly, individuals with mental health issues may have a “guardian ad litem” appointed to make treatment decisions on their behalf.

The Relationship Between Guardianship and Power of Attorney

In most cases, a guardianship overrides a power of attorney unless the terms of the guardianship are restricted to specific areas. The person who successfully petitions for guardianship will have authority over the individual in need of protection, rendering the power of attorney ineffective.

Even if an individual has previously granted a power of attorney or healthcare document, a guardianship may still be necessary if they refuse to cooperate with the designated agent. This can come as a surprise to families who thought they had taken preventative measures by securing a power of attorney, only to realize that it cannot supersede the individual’s own directions.

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For example, a person with dementia may vehemently resist placement in a nursing home. The family may assume that they can use the authority of the power of attorney to enforce the placement, but this is not the case. When someone signs a power of attorney, they retain their right to make their own choices until a court removes their legal capacity. Guardianship becomes necessary when an individual with dementia, for instance, is unable to make appropriate or safe decisions.

Guardianship Intervention Requirements

Guardianship intervention is required in the following scenarios:

  • The person has not signed a power of attorney or healthcare directive appointing someone to manage their affairs.
  • The individual appointed as power of attorney or healthcare agent obtained their authority improperly or is misusing it, which is particularly crucial when the person has a cognitive challenge like dementia and cannot monitor the agent’s actions.

The Process of Appointing a Guardian

The first step in appointing a guardian for a vulnerable person is to determine if and to what extent they are incapacitated. The proponent of the guardianship initiates the process by filing a petition with the court, requesting a determination of the individual’s capacity.

Determining Incapacity

The petition must outline the reasons for suspecting the person’s capacity is questionable. For example, if they are neglecting their bills, disregarding a serious medical need, or are vulnerable to scams.

Interesting to note, when a petition to determine incapacity is filed, all powers of attorney are suspended unless the court rules otherwise. Healthcare powers, however, remain intact unless specified otherwise.

When the petition to determine incapacity is submitted, the court takes two actions. First, to protect the vulnerable person’s right to due process, they are entitled to receive notice of and attend all legal proceedings related to the guardianship. Second, the individual must obtain representation from a guardianship attorney in Sarasota.

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The Examining Committee

Typically, the court appoints an attorney to represent the individual. However, the person may choose to substitute their own lawyer. Additionally, the court establishes a committee consisting of three individuals who visit the person alleged to be incapacitated, conduct interviews, and report back to the court.

The committee generally comprises a psychiatrist or physician, along with other professionals such as therapists, gerontologists, nurses, or social workers. The examining committee is responsible for assessing the functions the person is unable to perform based on pre-established criteria.

These functions include handling finances, making informed decisions about healthcare, residence, social contacts, and more.

The Committee Decision

The committee then reports on the legal rights the individual is unable to exercise, such as deciding where to live, managing finances, making gifts, or entering into contracts. If the court determines that the person lacks the capacity to exercise these identified rights, their rights are officially revoked.

This loss of rights is often permanent, although they can potentially be restored if the person regains their abilities and the court recognizes their regained legal capacity.

Appointment of a guardian significantly restricts the protected individual’s rights and privileges, including choosing a residence, providing informed consent to medical treatment, making end-of-life decisions, engaging in property transactions, obtaining a driver’s license, owning or carrying firearms, filing or defending lawsuits, marrying, and voting.

Guardian Rights and Limitations

Once the court removes a person’s rights, those rights are transferred to the guardian, with certain exceptions. Personal rights like marriage, voting, or driving cannot be delegated to the guardian.

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The Selection of a Guardian

The court appoints a qualified individual to act as the guardian, often a family member or friend. However, in situations involving family conflicts or multiple contenders for guardianship, the court may appoint an independent professional fiduciary.

Garrity Traina: Your Trusted Guardianship Advocates

At Garrity Traina, we specialize in assisting seniors and their loved ones in determining the best course of action for guardianship matters. We handle the necessary paperwork and represent clients in proceedings with administrative agencies. Additionally, we work closely with the guardian to ensure compliance with court-mandated accounting and reporting requirements.

To schedule a free consultation with our experienced guardianship attorneys in Sarasota, call Advocates in Aging today at (941) 242-7270 or contact us online.