Will Florida’s New Legislation Help Seniors in Guardianships?
Guardianship May Be required for an Incapacitated Person

Will Florida’s New Legislation Help Seniors in Guardianships?

Legislation filed in both the Florida House and Senate is designed to provide additional oversight of the state’s guardianship program.

orlando.com’s recent article, “Florida legislation would require guardians receive judge’s approval for DNR orders,” explains that the companion bills (House Bill 709 and Senate Bill 994) would also require guardians to report any payments they receive, along with who they are from, in an effort to prevent any conflicts of interests, under the table gifts or kickbacks.

The bills will also deny guardians the ability to petition themselves to be appointed to guardianship cases, unless they are related to the person.

Florida Senator Kathleen Passidomo, District 28, confirmed that both she and Florida Representative Colleen Burton filed their bills together.

Passidomo said the bills will now be reviewed by the Rules Committee.

The legislation comes as a result of a criminal investigation into former state guardian Rebecca Fierle of Orlando. She resigned after judges around Central Florida removed her from hundreds of cases, when it was discovered she placed DNR orders on people who didn’t want to die. The criminal investigation is ongoing.

She hasn’t been charged, but is the focus of multiple criminal investigations into at least two underway as of November—one by the Florida Department of Law Enforcement and the other by the Florida Attorney General’s Office.

Florida Governor Ron DeSantis recently announced his $91.4 billion budget request, which included a plea for more money to help expand oversight of guardianship cases, specifically the state’s professional guardians. Governor DeSantis is asking lawmakers to provide $6.4 million to support the Office of Public and Professional Guardians through the Florida Department of Elder Affairs. That office is seeking an increase of $454,930, specifically for professional guardian investigative services and legal fees.

A guardianship sometimes is necessary for an incapacitated loved one.

Reference: orlando.com (November 20, 2019) “Florida legislation would require guardians receive judge’s approval for DNR orders”

What to Do If You Are Appointed Guardian of an Older Adult
Guardianship for Older Persons

What to Do If You Are Appointed Guardian of an Older Adult

Being appointed guardian of a loved one is a serious responsibility. As guardian, you are in charge of your loved one’s well-being and you have a duty to act in his or her best interest.

If an adult becomes mentally incapacitated and is incapable of making responsible decisions, the court will appoint a substitute decision maker, often called a “guardian,” but in some states called a “conservator” or other term. Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”).

If you have been appointed guardian, the following are things you need to know:

  • Read the court order. The court appoints the guardian and sets up your powers and duties. You can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, you may or may not have to seek court approval for various decisions. If you aren’t sure what you are allowed to do, consult with a lawyer in your state.
  • Fiduciary duty. You have what’s called a “fiduciary duty” to your ward, which is an extremely high standard. You are legally required to act in the best interest of your ward at all times and manage your ward’s money and property carefully. With that in mind, it is imperative that you keep your finances separate from your ward’s finances. In addition, you should never use the ward’s money to give (or lend) money to someone else or for someone else’s benefit (or your own benefit) without approval of the court. Finally, as part of your fiduciary duty you must maintain good records of everything you receive or spend. Keep all your receipts and a detailed list of what the ward’s money was spent on.
  • File reports on time. The court order should specify what reports you are required to file. The first report is usually an inventory of the ward’s property. You then may have to file yearly accountings with the court detailing what you spent and received on behalf of the ward. Finally, after the ward dies or the guardianship ends, you will need to file a final accounting.
  • Consult the ward. As much as possible you should include the ward in your decision-making. Communicate what you are doing and try to determine what your ward would like done.
  • Don’t limit social interaction. Guardians should not limit a ward’s interaction with family and friends unless it would cause the ward substantial harm. Some states have laws in place requiring the guardian to allow the ward to communicate with loved ones. Social interaction is usually beneficial to an individual’s well-being and sense of self-worth. If the ward has to move, try to keep the ward near loved ones.

Legacy Planning Law Group can help with guardianships.

For a detailed guide from the Consumer Financial Protection Bureau on being a guardian, click here.

When Do I Need a Power of Attorney?
Power of Attorney

When Do I Need a Power of Attorney?

When do you need a power of attorney? Always. Without a good durable power of attorney, your loved ones will have to go to court if you become incapacitated.

A power of attorney is a legal document signed by the “Principal,” granting the authority to another individual to make decisions on the Principal’s behalf. This document is only in effect during the lifetime of the Principal.

nj.com’s recent article on this topic asks “Who can sign for an incapacitated person if there’s no power of attorney?” The article noted that to have the authority to conduct financial transactions concerning the assets solely owned by the incapacitated person who failed to execute a power of attorney, a guardian will have to be appointed by the court.

A guardianship is a legal relationship established by the court, in which an individual is given legal authority over another when that person is unable to make safe and sound decisions regarding his or her person, or property.

For example, in New Jersey, an application will have to be filed in the probate part of the Superior Court, in the county where the incapacitated person resides.

If it’s not an emergency, a guardian also will need to be appointed to make medical decisions for an incapacitated person who hasn’t signed a health care proxy. This is a legal document that gives an agent the authority to make health care decisions for an incapacitated person. It will take effect, if the person is incapacitated or unable to communicate. The agent will make decisions that reflect the wishes of the incapacitated individual.

It’s typically not necessary to be appointed as an agent under a power of attorney or health care proxy or legal guardian for another person to sign an assisted living or nursing home admissions contract or a Medicaid application.

However, prior to signing another person’s admissions contract, read the fine print to be certain that you don’t become responsible for the bills!

Learn more about the importance of having a good durable power of attorney in place.

Reference: nj.com (July 22, 2019) “Who can sign for an incapacitated person if there’s no power of attorney?”