Elder Law And Avoiding Guardianship: Helping You Protect Yourself And Your Loved Ones.
Elder Law is the legal practice of counseling and representing the elderly and persons with special needs through estate planning and other solutions to the challenges of aging and disability. It includes creating an estate plan to avoid guardianship, create protections from financial exploitation and undue influence, and to preserve assets for the benefit of the elderly person and his or her family through Medicaid planning. It also includes the creation of a life care plan to address the long-term care needs of the elderly.
As we age, our legal needs change. Estate planning decisions become increasingly important. There comes a time in many people’s lives when they can no longer do all the things they once loved or were able to do. Age, infirmity and illnesses take their toll. According to the Alzheimer’s Association, there are five million Americans who have some type of dementia, including close to 50 percent of all persons over the age of 85. This is when the elderly is most susceptible to financial exploitation. At Lyons, Beaudry & Harrison, we have been assisting our elderly clients with their unique legal issues for more than 50 years throughout the Gulf Coast, Sarasota County and Manatee County, including Sarasota, Lakewood Ranch, Bradenton and Venice. We have the experience and background needed to prepare estate planning documents to help you avoid financial exploitation, undue influence and an expensive intrusion of guardianship into your private lives and finances.
We can help you create an estate plan, establish a power of attorney with a trusted person and develop advance medical directives that allows you to direct your medical care when you are no longer able to do so yourself. We will work with you to create estate planning documents and a life care plan that will help avoid a guardianship, protect you from financial exploitation and undue influence, and provide guidance to you and your family, including:
Creating A Life Care Plan For Your Long-Term Care Needs
The selection of a person to make your future financial and medical decisions is a very important part of your estate plan. However, as you grow older, the providing and coordination of your health care can be time-consuming and stressful for both you and your family. Because the baby boomer generation is living longer with fewer children from past generations, the number of potential family caregivers to share the burden of the care has declined. Often, family members live far from their parents or simply do not have the time to meet all of the needs of the elderly parent. Long-term care decisions such as the hiring of companions, selection of an assisted living home or nursing home can be overwhelming. This is the time when you are most susceptible to financial exploitation.
At Lyons, Beaudry & Harrison, we believe that a proactive approach to the challenges of aging, long-term illness and disability enhances the quality of life for every member of the family. We will work with you to create a life care plan which is customized for your current and future long-term needs.
A life care plan helps you respond to the challenges created by aging, long-term illness or disability, whether you reside at home, are transitioning to a long-term care facility or are currently residing at a long-term care facility. The plan is a combination of estate planning, asset protection, legal services, public benefits qualification, care coordination, health care advocacy, nursing home advocacy and crisis intervention services customized to meet your current and future legal, financial and medical needs. Creating this plan lightens the load for the whole family.
A life care plan includes health care coordination services which can be performed by our case manager or another professional case manager to help families develop, implement and monitor care arrangements for elderly or disabled loved ones. Case managers help family caregivers avoid burnout by providing alternative community resources while enabling loved ones to age with dignity in the least restrictive environment. The case manager may also:
- Conduct assessments to identify problems, develop care plans and assists in the arrangements for health care treatment and services
- Arrange and monitor in-home health or companion services
- Act as a liaison between elders and family members living at a distance, monitoring their situation, taking them to their doctor appointments and identifying problems
- Transition the elderly to a new living situation including a retirement community, assisted living or a skilled nursing facility
- Review medical issues with your doctor or other health care providers and refer to specialists as necessary
- Provide independent advocacy to the elderly and their family concerning health care products and services
How Life Care Planning Works
While you are living at home or with family, a case manager provides care coordination and support services that ease the burdens on you and your family caregivers. The case manager conducts an assessment, identifies appropriate care, coordinates health care services, helps you anticipate and prevent problems and serves as your advocate for high-quality care. The goal is to keep you at home as long as possible with support.
As your condition progresses, our elder law attorney and case manager can develop a plan of action to address your legal, financial, health care, housing and long-term care issues. If skilled nursing care becomes necessary for your care and needs, you already have a plan in place to qualify for and access Medicaid and other public benefits if needed.
After the elder moves to a long-term care facility, our case manager visits to monitor the quality of care and serve as the resident’s and family’s advocate. The case manager and our elder law attorney work closely together with the staff to help assure the quality of life. If problems occur, we can help to resolve them as quickly as possible.
In the event you transition to a long-term care facility, our case manager visits you to monitor the quality of care, arrange for supplemental care and serve as your and your family’s advocate. The case manager works with the staff and other health care providers to help assure your quality of life. If problems occur, we can help to resolve them as quickly as possible.
Life care planning is a relationship between our firm, you and/or your family that gives you the support, guidance and services that you need throughout your long-term care journey. A life care plan offers welcome reassurance to you and your family that you may enjoy an increased quality of life during your lifetime.
Get Started On Your Estate Plan And Life Care Plan Today
At Lyons, Beaudry & Harrison, we are here to help you sort through complex issues of elder law. Call 941-366-3282 or contact us online to make an appointment. We are conveniently located at the corner of Main Street and Orange Avenue in Sarasota, Florida.
When A Guardianship Cannot Be Avoided: The Preservation Of Your Assets And Quality Of Life.
With the establishment of an estate plan and a Life Care Plan, the intrusion by the court into your private affairs and the expense of a guardianship can be avoided. In the event a guardianship is filed against you, it may be necessary to engage in guardianship litigation to maintain control of your affairs or to enforce your estate plan and your selection of the person to handle your affairs in the event of your incapacity.
If you failed to select a person to handle your financial and medical affairs or made the selection when you lacked capacity or were subject to undue influence, the only way to protect your assets and quality of life may be through a guardianship and the appointment of a guardian. There may be circumstances when a guardianship is necessary, even if an estate plan is in place, to undertake actions in your best interest and to protect your assets from financial exploitation.
At Lyons, Beaudry & Harrison, we serve Sarasota County and Manatee County and the communities of Sarasota, Lakewood Ranch, Bradenton and Venice in all aspects of a guardianship and guardianship litigation. We help you and your family navigate through the challenging guardianship process. Our lawyers have decades of experience to assist in the resolution of any dispute or fully litigate the dispute, if necessary.
Frequently Asked Questions About Guardianship In Florida
At Lyons, Beaudry & Harrison we advise individuals who are considering the filing of a guardianship or becoming a legal guardian of an incapacitated adult. We often hear the following questions from our clients:
- How does guardianship work in Florida?
- Who can be a guardian in Florida?
- How is physical or mental incapacity determined?
- What is a limited or plenary guardianship in Florida?
- What are the rights of guardians in Florida?
- How long does the guardianship process take in Florida?
How does guardianship work in Florida?
There are two separate proceedings to a guardianship which take place concurrently. A petition to determine incapacity is a court proceeding in which a court makes a determination as to whether the alleged incapacitated person (AIP) has the capacity to make financial or medical decisions, or exercise other rights. In the event the court makes a determination of incapacity, the court must also determine whether there are reasonable alternatives to the appointment of a guardian. Valid estate planning documents such as a trust, power of attorney and advance health care directives are considered reasonable alternatives to the appointment of a guardian.
The second proceeding is a petition for the appointment of a guardian, which requests the court to appoint a guardian. In the guardianship proceeding, the petitioner or other interested person can request an emergency temporary guardian or other relief. A court may appoint a guardian to make decisions on behalf of the incapacitated person (the ward). An appointed guardian may exercise power over the ward’s finances and/or personal decisions, such as the medical care the ward receives and living arrangements. The guardian’s decisions must be made in the best interests of the ward. A guardianship proceeding is an expensive process and can be avoided by estate planning and the arrangements of life care planning.
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Who can be a guardian in Florida?
Most adult residents of Florida are eligible to serve as legal guardians. A nonresident of Florida can serve as a guardian if they are a blood relative, spouse or adopted child of the ward. A qualified financial institution can also serve as a guardian, but the power of an institution is limited to decisions about the ward’s property. A nonprofit corporation and even a for-profit corporation, under certain circumstances, may serve as a guardian of the person and property. A person who has been convicted of a felony cannot serve as a guardian. The right to be a guardian is also denied to any person found by a court to be incapable or unsuitable to discharge the duties of a guardian.
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How is incapacity determined?
An adult can only be considered incapacitated under Florida law if a court determines, on the basis of clear and convincing evidence, that the person does not have the capacity to exercise his or her various rights. The alleged incapacitated person is entitled to due process and a hearing. After a petition for the determination of incapacity is filed, the court will appoint an examining committee to evaluate the capacity of the alleged incapacitated person and make assessments of the person’s physical, mental and functional health. Each committee member files a report with the court as to his or her findings.
The court will appoint an attorney for the alleged incapacitated person (AIP), but the AIP can retain counsel of his or her choice. We are often times retained by the AIP to defend his or her rights in the incapacity and guardianship proceeding and to enforce the estate planning documents as reasonable alternatives to a guardianship.
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What is limited or plenary guardianship in Florida?
A Florida court can grant limited guardianship or plenary guardianship. Limited guardianship is granted when the ward is found to be partially incapacitated. A person is partially incapacitated if they are capable of exercising certain rights, but not all tasks needed to care for themselves and manage their financial assets. Plenary guardianship is total guardianship, wherein the guardian has the right to exercise all delegable legal rights for a ward who is totally incapacitated.
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What are the rights of guardians in Florida?
The rights of guardians are limited to what is outlined in the court order granting guardianship and as set forth in the Florida Guardianship Law. The specific rights that are removed from the ward are transferred to the guardian. These rights may involve decisions about the ward’s medical care, personal care and/or financial affairs. A guardian cannot exceed the scope of their authority without the approval of the court.
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How long does the guardianship process take in Florida?
The guardianship process may move very quickly from the date of filing the petition for the determination of incapacity to the adjudicatory hearing where a court determines capacity and whether to grant limited or plenary guardianship. Factors that could affect the timeline include the examining committee’s decision and whether the intended ward fights the guardianship in court.
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