As this blog has discussed on previous occasions, Tallahassee, Florida, residents can use important estate planning tools to make sure that there is someone in place to make decisions about their finances and health care for when they get in to a position where they are no longer able to do so themselves.
However, sometimes people forget to create documents like health care proxies or powers of attorney. In other cases, there may be something wrong with the documents they created.
In still other cases, while a health care proxy or power of attorney may be valid and in force, it becomes apparent that the person who has been appointed to these important roles is for whatever reason not up to the task of making decisions in the best interest of the person who once trusted him or her to do so.
In any of these scenarios, a family is likely going to need to ask a court both to create a guardianship for their loved one and to appoint a suitable guardian. As implied, unlike health care proxies and powers of attorney, a guardianship is always a court proceeding, and the court makes final decisions about who the guardian will be, what powers the guardian will have, and so forth.
In Florida, courts have authority to appoint a guardian over an adult, even without that person's consent, when that adult no longer has the physical or mental capability to take care of themselves and their finances.
The court's orders will give power to another person to provide appropriate care to the adult and to manage his or her finances. Because Florida law expresses a strong preference for legal adults handling their own affairs, guardianships are generally limited in scope only to provide the help a person truly needs. A guardian is answerable to the court for how he or she carries out his or her role and can be punished for abusing his or her power.
Guardianships can easily turn in to complicated legal proceedings, and they almost always involve a trip to the courthouse. Therefore, it is generally a good idea for a Floridian who has questions about guardianship, or is thinking about asking for one on a loved one's behalf, to speak with a probate and estate attorney about their options.