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Third-party guardianship does not always work out as planned

Florida residents may think of guardianship issues as generally affecting minor children whose parents have died or cannot care for them for some other reason. However, guardianships can also be an issue for adults who have become incapacitated in some way. This may mean adults with a disability or older people who are physically or mentally unable to care for themselves.

Often, family members of such incapacitated adults become the guardian so that they can make those decisions that the incapacitated family member cannot. Sometimes, though, a third party is appointed as a guardian, either because family members are too far away, or don't want the responsibility or because it appears to a judge that it is in the individual's best interest to have someone else appointed guardian. Sometimes these third parties are individuals, like an attorney or other experienced professional, and sometimes they are charitable organizations that specialize in caring for the disabled. Before relinquishing guardianship over a loved one, however, there are certain things one should take into account.

Once guardianship is established, the legal guardian has the power to make all the decisions one might normally make for oneself. That means decisions regarding financial matters, as well as choices in medical treatments and end-of-life care. Further, the guardian has fiduciary and ethical duties to the ward, including attempting to make decisions that best reflect the ward's intentions. A third-party guardian does not have a duty to follow family members' instructions, or even to consult or inform family members before making such decisions, generally. Some guardians will consult and take family members' wishes into consideration, but at the end of the day, the guardian must act in the best interest of the ward and act as the ward him or herself might have acted.

Thus, it is important to reconcile the loss of control over certain aspects of a loved one's life by having a third-party guardian appointed. It may also make sense for those still able to take care of themselves to think about possible incapacity and ensure that someone they trust is in line for guardianship within their estate planning regime.

Source: Huffington Post, "What You Should Know Before Requesting a Third Party to be Named Guardian of Your Adult Child," Chana Frid, April 10, 2014

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