Protecting Yourself from Possible Guardianship

When most people think about creating an estate plan, they think about protecting and providing for their loved ones when they die. What many people don’t think about when creating an estate plan is how it can protect them if they don’t die but become unable to make decisions for themselves. Age, illness, and injuries can render someone suddenly or gradually incapacitated. Estate planning can include planning for possible incapacitation down the road.  

At Eric H. Light, P.A., I have helped clients in Boca Raton and throughout Florida prepare for the expected and unexpected in their estate plans for more than 20 years. Each client’s needs and concerns are unique and as such, I invest the time and effort each one needs to create a plan that serves them well. If you want to know how to protect yourself from possible guardianship, set up a consultation with me.  

What is Guardianship? 

Guardianship refers to both the legal act of determining the need for a guardian, as well as the appointment of a guardian. When someone is no longer capable of making or expressing decisions about themselves or managing their finances, the court may appoint a guardian, or conservator, to do so for them.  

Relatives may petition the court for guardianship of an older relative, alleging the person can no longer care for themselves or have become targets of financial fraud. A person suffering a traumatic brain injury in an accident may suddenly be incapable of making decisions. A diagnosis of dementia may leave someone wondering who will take care of them when they no longer can take care of themselves and manage their own affairs. In all these situations, the court will determine whether you lack the ability to make your own decisions.  

What are Some Drawbacks of Guardianships? 

Losing your freedom to make choices for yourself is one of the drawbacks of guardianship. If you are deemed to be incapacitated, your legal and civil rights are essentially taken away. You lose your right to determine where you live, what medical care you receive, and your ability to decide what assets you own and how your money is spent. Once you are deemed to be incapacitated, you no longer have a right to fight that, or any other matter, in a court of law.  

Perhaps to add insult to injury, you pay the bills for everything related to your guardianship, including the guardian, attorney’s fees, and court costs. You even pay for the physicians and other health professionals the court will hire to determine incapacity.  

Florida law allows a competent individual to file with the Clerk of the Court a declaration naming a “preneed guardian.”  The clerk provides the declaration to the court in a future incapacity hearing. The court, however, is not bound to appoint the person you named as your guardian.  

Perhaps one of the most significant drawbacks of a guardianship is that the court, not you, decides who your guardian is.  

What Can I Do to Protect Myself Against Possible Guardianship? 

You can protect yourself against possible guardianship through your estate plan. Florida law provides that fully or partially incapacitated persons should be subject to the “least restrictive alternative” to guardianship possible. This is where steps you took in your estate plan can help. 

A living trust can address what happens to the management of the assets of the trust if you become unable to serve as trustee. You name a successor trustee who manages the trust for your benefit, as well as for those you have named as beneficiaries when you die. The trustee has a fiduciary responsibility for the trust.  

Durable powers of attorney may also protect you from possible guardianship. In a durable power of attorney for healthcare directives, you authorize the person of your choosing to make healthcare decisions for you when you cannot. A durable power of attorney allows you to name the person you authorize to manage a broad range of your financial affairs or specific affairs. A “springing” durable power of attorney “springs” into effect upon a specified event, such as incapacitation.  

Experienced Estate Planning to Protect You from Guardianship 

Having someone not of your choosing make critical decisions about you and your assets every single day is a frightening proposition. As an estate planning attorney, I help clients in Boca Raton, Florida, explore all their options for protecting not only those they love, but themselves as well. Protecting yourself from possible guardianship down the road is wise. Call Eric H. Light, P.A. today to schedule a time to discuss your options.