EdwardRingwald.com

DISCLAIMER: This topic is Florida specific; if you are reading this in another state (such as Georgia, for instance) check your state's guardianship laws. While your webmaster has an Associate in Science degree in Legal Assisting, none of this information contained in this topic should be taken as legal advice. Like any other legal issue, consultation with an attorney who is licensed by the Florida Bar is highly recommended. (In other states, check with your state's bar association).

The following is an abridged version of this topic. I have created a white paper on Florida's guardianship laws that go into more detail - which amount to nothing more than a license to kidnap and exploit the elderly, the disabled and our veterans who served America proudly - which you can read here. You can also click on this link for more information which includes links to web sites that deal with guardianship and its dangers, especially from a Florida standpoint.

Guardianship defined

The Pinellas County Clerk of the Circuit Court defines guardianship as a legal arrangement under which a person (the guardian) has the legal right and duty to care for another (the ward) and his or her property.

In a guardianship, there are two key players:

• The Guardian who oversees the legal, financial and other affairs over a person called the Ward.

• The Ward is the incapacitated person who, by reason of physical or mental disability, is incapable of managing his or her own affairs.

Guardianships are run by attorneys, one that represents the guardian and one who represents the ward.

Florida uses the term guardianship for its guardianship laws as codified in Chapter 744 of the Florida Statutes. However, in other states (such as California for instance which uses the term conservatorship) the terms Guardianship and Conservatorship are used; however, in certain states like Georgia for example, guardianship is for the person and conservatorship is for the property such as finances. The only exception is Louisiana, which uses the term interdiction for their guardianship laws and a guardian in Louisiana is called a curator. These terms basically mean the same thing, especially if you are reading this topic in another state such as California, Georgia or Louisiana for instance.

However, the assistance of an attorney - preferably one who is licensed by the Florida Bar (or the bar in your state) and certified in elder law - is strongly recommended. In Florida, never pursue a guardianship on your own - only attorneys can file guardianships per the Florida Probate Rules. The only exception is a guardian advocate under Chapter 393 of the Florida Statutes, but doing so on your own is penny wise and pound foolish. Navigating Chapters 744 and 393 of the Florida Statutes as well as the Florida Probate Rules is akin to navigating Interstate 275 in the Tampa Bay region during the morning and evening commutes, which is why you need an attorney to guide you through the legal labyrinth.

How a Guardianship is Created

A person who has a significant interest in a person - such as a relative, for example - and is concerned about that person's welfare begins the process by first consulting with an attorney, in particular one who specializes in elder law or in wills, trusts and probate. Based on the consultation, the attorney recommends that a guardianship be created.

The attorney prepares the paperwork which is prescribed by the court in order to get a guardianship created. At the courthouse, the paperwork consists of two petitions:

• Petition to Determine Incapacity

• Petition to Appoint Guardian

Once the paperwork is filed with the court it begins a process by having the notice and a court order served on the alleged incapacitated person as well as his or her next of kin, which is done by the Sheriff or a process server, usually an attorney acting as an elisor. The notice is the Petition to Determine Incapacity and the court order is an order by the judge that appoints an examining committee and sets a date for a hearing. At this point the alleged incapacitated person will either have an attorney or one will be appointed by the court to represent the alleged incapacitated person at this stage.

Each member of the examining committee examines the alleged incapacitated person to see if there is indeed an issue which prevents the person from managing his or her own affairs. At the end of the examination the examining committee member summarizes his or her findings in a report which is given to the judge. Once the judge has reports from all three members it is reviewed and a hearing is set to make a determination regarding the capacity of the alleged incapacitated person.

At the capacity hearing the judge will review the reports and hear any testimony. The outcome of this hearing will either be that (1) the person is indeed incapacitated and that a guardian is to be appointed or (2) the person is not incapacitated and that guardianship is not needed. If the judge rules that, based on the reports of the examining committee, the person is not incapacitated then that is the end of the proceedings right there.

In this scenario, the judge has reviewed the reports from the examining committee and the judge has ruled that, based on the reports and testimony, and the fact that no advance directives such as a durable power of attorney were found, the person is incapacitated. The next step is for appointment of a guardian to oversee the person's interests. The guardian can be a relative, but things can get messy here as to who would be appointed the person's guardian.

Once the guardianship is ordered, the guardian receives court documents that appoint him or her as a person's legal guardian, which are called letters of guardianship. As for the alleged incapacitated person, his or her legal status has significantly changed to where his or her civil rights are taken away. The alleged incapacitated person has become a ward.

Now that the guardianship has begun, the guardian's responsibilities do not end at this point. Working with the attorney, the guardian has to file initial reports and accountings with the court within a 60-day time period. Thereafter and as long as the guardianship lasts, these reports and accountings are filed with the court on a yearly basis.

Rights of the Ward

The rights of a person who is under a guardianship - who is called the ward - can be summed up in one sentence:

A ward has much less legal rights than a convicted felon.

The ward practically loses everything that we take for granted: The privilege to hold a driver's license, the right to vote, the right to enter into contracts, the right to sue and be sued, the right to travel, the right to determine where you live, the right to make medical decisions on your own, the right to hold a job, the right to manage his or her financial affairs, the right to possess or purchase a firearm ... and the list goes on and on.

When only certain rights are taken away, the guardianship is a limited guardianship. However, when all rights are taken away the guardianship is a plenary guardianship.

If the ward happens to have a professional guardian appointed, then that guardian has the right to restrict who the ward may see - even if it's the ward's relatives. Not only can a professional guardian restrict who the ward can see (which is isolating the ward), a proessional guardian can relocate the ward to an institution and sell the ward's property. In other words, a professional guardian can destroy a family's relationship.

How long do Guardianships last?

It can be summed up in one word, especially if a professional guardian is involved: FOREVER.

A ward has the right to petition the court for review of competency if the ward has recovered to the point that the ward can manage his or her own affairs once again. In reality, it does not happen as professional guardians have at their disposal a psychiatrist that will give perjured testimony that the ward cannot manage his or her own affairs. After all, a ward with significant assets is a professional guardian's working cow, managed for the professional guardian's own personal benefit.

What can you do to see that your loved one get his or her wishes?

First, let me say this:

KEEP YOUR LOVED ONE OUT OF PROBATE COURT!

Second, you and your loved one should have a conversation with your attorney, one that is licensed by the Florida Bar and that specializes in elder law as well as wills, trusts and probate. There are many ways that you can provide for your loved one without having to resort to the court system, and your attorney can help you in that regard.

Third, unfortunately there are attorneys out there that say that guardianship will preserve the assets. If your attorney says so, find another attorney immediately. Guardianship is not the cure-all for asset preservation; instead, guardianship is for people who have lost the ability to manage his or her own affairs by reason of illness, whether it may be physical, mental or a combination of the two, and for where no advance directives were prepared.

Again, I am going to say this:

KEEP YOUR LOVED ONE OUT OF PROBATE COURT!

Once a petition to determine capacity is filed with the court it is really the end of your loved one's relationship. Besides, people who got served with papers determining a person's capacity to manage his or her own affairs have gone to major extremes to save their dignity and respect such as leaving the United States and renouncing American citizenship. After all, renunciation of American citizenship is a gravely serious matter.

Links to More Information

My white paper on Florida's guardianship laws - a must read!

NOTE:The following links below take you out of the EdwardRingwald.com presence and will open in a new window. No liability is assumed for the information contained therein.

A must see: National Association to Stop Guardian Abuse. Plenty of information, stories and resources.

Another must see: Americans Against Abusive Probate Guardianship. Another treasure trove of information and resources. NOTE: Website is inactive - link goes to an archived version of the site at the Internet Archive.

The Retirement Nightmare: How To Save Yourself From Your Heirs And Protectors - A book written by Diane Armstrong, Ph.D. Information and ordering the book is available at Amazon. This is one book that needs to be on your bookshelf when you plan for retirement! NOTE: Website link goes to an archived version at the Internet Archive; Amazon link goes to book information and ordering page at Amazon.com.

Guardianships and the Elderly: The Perfect Crime - Another great book by Dr. Sam Sugar, MD. Excellent information on how to prevent an unwanted guardianship in the very first place. Like The Retirement Nightmare book, this book also needs to be on your bookshelf when you plan for retirement! NOTE: Link goes to book information and ordering page at Amazon.com.

We're Here to Help: When Guardianship Goes Wrong by Diane Dimond. Like the two other books mentioned above, this needs to be on your shelf or your iPhone. An excellent investigative work on guardianships!

If you are concerned about your loved one, just remember this:

GUARDIANSHIP IN FLORIDA IS A LICENSE TO KIDNAP AND EXPLOIT THE ELDERLY AND THE DISABLED AS WELL AS OUR VETERANS WHO PROUDLY SERVED AMERICA IN THE UNITED STATES ARMED FORCES!