When laws are written, debated and passed in the United States, there is a reason or purpose behind each one; that is, the law is intended to solve some problem or accomplish some goal of the legislature. At times, due to the legislative system and the somewhat esoteric language used in many legal situations, the purpose behind certain laws can be opaque at best. For this reason, as well as to give those interpreting laws some guidance, many state legislatures, like Florida, include a statement of 'legislative intent' in their legal codes.
In our recent discussions of the adult guardianship system in Florida, we have covered a lot of ground regarding some of the legal reasoning used by courts in deciding whether a family member can challenge the potential appointment of a person who has been designated previously by an incapacitated adult to be his or her guardian. Before that, we spent time on how the professional guardianship system in Florida had come under scrutiny and some legislative efforts to change some of the ways the system works. These discussions point up one of the main reasons older adults end up with people other than family appointed as their guardians: the family can't agree. Two recently reported cases illustrate this.
Previous posts here detailed a 2014 circuit court of appeals case that involved the competency of people to appoint pre-need guardians and the standard courts must use to determine whether to honor people's designations of their own guardians. Previous posts here have also discussed the fact that the professional guardianship system which is often used by courts to appoint guardians for adults who have lost capacity has come under intense scrutiny over the last few years and has spurred legislative efforts at reform. But, why do we spend all this time talking about guardianship?
Previously, this blog discussed preneed guardianship designations, the statutory requirements for them and a Florida 1st District Court of Appeals or DCA case that helped define the standard to determine the competency of the person making the designation. At that time, it was suggested that there was another major issue in the preneed guardianship area that was clarified by that case.
This blog has discussed a number of issues regarding adult guardianship in the state of Florida. We have discussed what a guardian's duties might be, some pitfalls facing guardians, as well as some discussion of the various arguments regarding the reformation of the professional guardian field. We have also discussed that creating a document appointing a "preneed" guardian is one option in estate and incapacity planning. Preneed guardianship designation allows one to designate a specific person to take care of him or her should the designator become incapacitated.
About a month ago, this blog reported on the passing of professional guardianship reform by the Florida Legislature. While this is certainly good news for those dealing with the adult guardianship system, it will not end all issues that a Floridian may have when it comes to this issue. In this installment, let's look at some of the different aspects of adult guardianship in Florida that might cause someone to consider consulting a professional.
This blog has previously reported on the attempts to reform the professional guardianship process for adults in the state of Florida. Recently, at least some part of that goal has come closer to fruition. In late April the Florida Senate passed, by unanimous vote, a bill that purports to improve the adult guardianship process and make exploitation of wards more difficult. The bill is now in the hands of the governor, who is expected to sign it into law.
When this blog has discussed adult guardianship in the past, it has generally focused on the somewhat more common "involuntary guardianship." However, "voluntary guardianship" is also an option in Florida. Unlike involuntary guardianship, voluntary guardianship can occur without a finding of incapacity, and upon the petition of the person who needs the guardian.
Adult guardianship can be a contentious affair. When a person is unable to take care of his or her own affairs anymore, and this power is given to someone else, there can be understandable feelings of frustration and bitterness on the part of the ward. Further, family members may be suspicious of this new person's motives. This is why courts in Florida use full or plenary guardianship as a last resort, when all other less restrictive means of addressing the situation are unlikely to be successful.
Regular readers of this space may recall that guardianship of an adult may occur if that adult becomes no longer competent to handle some or all of his or her own affairs. We have discussed that any competent adult can file a petition to determine someone's incapacity, and a court may appoint that person or a different person to be the ward's guardian. While a guardian can be someone who knows the ward, there are also some professional guardians who make a career of caring for incapacitated people's assets.