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Guardianship in Florida can be avoided by careful planning


A court-appointed guardian is a person that the court has decided shall have the authority to control another person and/or his or her property. This guardianship is usually grated when an individual has become incapacitated for some reason, and can no longer make decisions legally.

Sometimes a court will invest one individual with all control over a person's affair, while other times it will appoint one individual to be guardian of the person, and another to be guardian of that person's property. There are private guardians who can be appointed if the incapacitated person's income and assets can pay the fee. Otherwise, the court will have to appoint someone from a publically-funded organization, or a volunteer. Social security reports that from 2003 to 2009, there has been a seven percent increase in recipients that had other designated to handle their benefits.

Obviously, many people would prefer to have some say over the individual who will be given control of their lives in case they can no longer exercise control themselves. Luckily, under Florida law, there are ways to do this. First, a written declaration while one is still competent can designate a guardian that will be entitled to serve in that capacity unless a court finds the designee is not qualified to discharge the guardianship duties.

Perhaps an even better choice is to avoid guardianships altogether. There are several incapacity planning techniques that can be incorporated into an estate plan to accomplish this. Properly completed powers of attorney and healthcare proxies can take the decision out of a court's hands entirely by operation of law. It is important that one put thought into who will be given these powers. Ideally, it will be someone the grantor trusts implicitly.

Equally important, is that the grantor determine a way to ensure these documents are correct, legally enforceable, and actually accomplish what the grantor wishes. There is little that is more essential to well-being than the peace of mind that comes with being assured that one will be taken care of if one becomes incapacitated.

Source: Sarasota Herald Tribune, "What you need to know about guardianship," July 2, 2013

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