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Avoiding Guardianship by Planning Ahead

By Matthew D. Barry, Esq.
Board Certified Specialist in Elder Law
by The Florida Bar

A large-scale study reports that only about twenty-five percent (25%) of the population has signed advance directives. The top two responses people gave for not having them were “I don’t know what advance directives are” and “my family knows my wishes.” So, as with 75% or so of the population, you may be wondering, ‘what are advance directives?’ And ‘is it enough for my family members to know my wishes?’ Advance directives are critically important. Without them, seniors especially are at a greater risk of incurring the time, expense, and personal intrusion of incapacity and guardianship proceedings.

What are advance directives?

There are several different advance directives for health care under Florida law: health care surrogate, living-will, an anatomical gift and a preneed guardian.

A health care surrogate is designated by a person to make medical decisions when that individual is unable to make those decisions for himself or herself. For example, the health care surrogate could be authorized to choose a course of treatment after falling and breaking a hip or to decide where the person will reside after a hospital stay. The health care surrogate may decide whether the person should live at home or a facility. The authority of the designated health care surrogate is described in the advance directive. The extent of the authority you give to your health care surrogate should be considered carefully.

A living-will is a declaration of a person’s desire to discontinue artificial life support or other lifesaving measures when incapacitated and in a terminal condition, persistent vegetative state, or end stage condition. A living-will expresses the person’s wish not to artificially prolong the process of dying.

An anatomical gift takes effect on death and may be made in one of several ways by:

  1. Signing a Uniform Donor Card.
  2. Registering online with the donor registry.
  3. Signifying an intent to donate on a driver license or ID card issued by the Department of Highway Safety and Motor Vehicles.
  4. Expressing a wish to donate in a living-will or another advance directive.

There may be circumstances when advance directives and a durable power of attorney (described below) are not sufficient to address all of a person’s problems. A preneed guardian is a written declaration that names the person who will serve as your guardian in the event that the court determines that you lack capacity and there are no alternatives to a guardianship. After it is executed, the preneed guardian declaration may be immediately filed with the clerk of the court. If a petition to determine incapacity is filed, the clerk must notify the court and the interested parties of the preneed guardian declaration.

What is the role of a durable power of attorney and/or living trust in avoiding guardianship?

In addition to advance directives for health care, a durable power of attorney (DPOA) for finances is equally important. It allows a person to designate an attorney-in-fact (agent) to make a wide range of financial decisions. The DPOA should specify that the attorney-in-fact can plan and apply for federal benefits, such as Medicaid nursing home assistance and Social Security.

A living trust is another important tool that can be used to manage trust assets while the settlor (the person who established the trust) is incapacitated. If an incapacitated person’s assets can be appropriately managed through a living trust and/or durable power of attorney, a guardianship of the property may be unnecessary. In establishing a living trust, the settlor (person making the trust) must choose a successor trustee to take over during incapacity or upon the death of the settlor.

Is it enough if my family knows my wishes?

Family members need legal authority to carry out their loved one’s wishes. Without at least advance directives for health care and a durable power of attorney for finances, a court may need to appoint a guardian to make health care and/or financial decisions for the incapacitated person. Under Florida law, court appointment of a guardian is a last resort when there are no less restrictive alternatives to address the person’s problems. Advance directives, durable powers of attorney and living trusts may provide less restrictive alternatives and help avoid guardianship, family conflict, and the associated fees and costs.

Matthew D. Barry is board certified by The Florida Bar as an expert in Elder Law. Mr. Barry is an associate attorney at Lyons, Beaudry & Harrison, P.A., 1605 Main Street, Suite 1111, Sarasota, Florida 34236; phone: 941-366-3282. He focuses his practice on guardianship law, wills, trusts and estates and public benefits (including Medicaid planning).

Office Location
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    Suite 1111
    Sarasota, Florida 34236-5840
    Phone: 941-444-6407
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