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Guardianship

What are the powers of a guardian of the person?

By Guardianship

As guardian of the ward, an individual assumes only those rights which have been delegated to him/her by the court. These rights vary based on the particular case, but there are nonetheless overarching guidelines to be applied to all guardians. For instance, no guardian may act against the best interests of the ward, and all guardians must file annual guardianship reports with the court, unless waived by the court for good cause.

A guardian who is appointed with authority over a ward’s person is in charge of organizing medical, mental, rehabilitative, and person care for the ward, in addition to serving as the advocate for the ward in all decision-making processes regarding this care. The guardian must, to the best of his/her ability, discover and consider the expressed desires of the ward and also allow the ward to maintain contact with family members and friends (unless the guardian finds that the upholding of these relationships would cause harm to the ward). Ultimately, this guardian acts as the chief decision-maker on behalf of the ward, and he/she must consistently evaluate the needs and interests of the ward so as to best represent them.

The attorneys at Bach, Jacobs & Byrne, P.A. represent both guardians of the property and person in both plenary and limited guardianship proceedings.

July 25, 2019
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What is Adult Protective Services in Florida?

By Elder Law, Guardianship, Health

Adult Protective Services is a program of the Florida Department of Children and Families. Their mission is to protect vulnerable adults from abuse, neglect, exploitation, and self-neglect, as well as to enable adults with disabilities to remain comfortable in their communities.

A vulnerable adult, as defined by Florida Statute §415.102, is “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.” If you suspect that a vulnerable adult you know is the victim of abuse, neglect, exploitation, or self-neglect, do not hesitate to call the Florida Abuse Hotline, 1-800-962-2873. The suspected abuse can also be reported online at https://reportabuse.dcf.state.fl.us/.

For more information, visit the Adult Protective Services website, http://www.myflfamilies.com/service-programs/adult-protective-services. If you believe that a Florida senior may be the victim of financial exploitation, contact the attorneys at Bach, Jacobs & Byrne, P.A. to discuss your options and legal remedies to end the abuse. Call (941) 906-1231 to schedule an appointment.

June 21, 2019
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What questions should I ask if I think my loved one is the victim of elder abuse?

By Elder Law, Guardianship, Health

Despite how common elder abuse is in Florida, it’s not always easy to detect when a loved one is a victim of abuse, exploitation, neglect, or self-neglect. While there are many questions one can ask to determine whether a loved one is being abused, below are some recommended by the Stanford School of Medicine:

1) Do you feel safe where you live?

2) Who prepares your food?

3) Does someone help you with your medication?

4) Who takes care of your checkbook?

Of course, one can also ask more directly about the suspected abuse:

5) Does anyone ever hurt you?

6) Does anyone ever take things from you without asking?

7) Does anyone ever make you do things you don’t want to do?

8)) Have you signed anything strange lately?

9) Are you afraid of anyone at home?

10) Are you alone a lot?

            If your loved one’s answers convince you that there is reason to believe they are the victim of elder abuse, call the Florida Abuse Hotline, 1-800-962-2873, as soon as you can. You can also report the suspected abuse online at https://reportabuse.dcf.state.fl.us/.

To discuss the different legal remedies available to you, including guardianship, call Sean M. Byrne, Esq. of Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

 

June 13, 2019
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What are my responsibilities as a Florida guardian now that the ward has died?

By Guardianship

If you are a guardian of the person, your duties end once the death certificate is filed with the court. However, if you are a guardian of the property (or a guardian of the person and the property), it is necessary to file a final report (including an accounting), death certificate, and petition for discharge upon the death of the ward. These documents may also need to be served on specific interested parties.

A guardian is not automatically named personal representative of the decedent’s estate – the probate court takes into account a number of factors in this decision, including statutory preferences for who is appointed. If you are a guardian in need of assistance regarding your ward’s end-of-life documents, or if you are seeking appointment as personal representative, contact the experienced elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. Call us at (941) 906-1231 to schedule a consultation.

June 11, 2019
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Can a Durable Power of Attorney help avoid guardianship once I become incapacitated?

By Estate Planning, Guardianship

Having certain estate and end-of-life plan documents in place may be considered ‘lesser restrictive alternatives’ to guardianship if you become incapacitated. One possibility is the Durable Power of Attorney: if created by an individual before incapacitation, a Durable Power of Attorney appoints an agent or attorney-in-fact to make financial decisions and possibly even medical directives on behalf of the client (known as the “principal), even when the principal becomes incapacitated. If the individual does not have a power of attorney and a Florida circuit court adjudicates them incapacitated, then the court appoints a guardian, if there are no lesser restrictive alternatives. This guardian may be in charge of making financial and/or medical decisions on behalf of the ward until the point when the ward regains capacity. It is the responsibility of the guardian to make decisions guided in highest priority by the best interests of the ward in compliance with the Florida Guardianship Law.

For help drafting a Durable Power of Attorney or to discuss any questions you have about guardianship, please feel free to call Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

May 20, 2019
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What are the reasons a guardian could be removed?

By Guardianship

There are many reasons why a guardian could be removed. The Florida Guardianship Law states the grounds for removal explicitly. Listed below are some of the reasons:

-Fraud in obtaining his/her guardianship appointment

-Failure to properly discharge his/her guardianship duties

-Abuse of his/her guardianship powers

-Incapacity or illness which has resulted in an inability to discharge his/her guardianship duties

-Failure to comply with an order of the court

-Mismanagement of the ward’s property

-Conviction of a felony

-Failure to comply with the rules regulating guardianship reports

The attorneys at Bach, Jacobs & Byrne, P.A. are highly experienced in guardianship issues and guardianship litigation. For help in your guardianship case, please do not hesitate to call at (941) 906-1231.

April 2, 2019
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(Updated 2018) What determines a disabled adult child, and what Social Security benefits can they receive?

By Government Benefits, Guardianship

A disabled adult child, or “DAC,” is an individual 18 years or older with a disability that began before they reached age 22. Such an individual is considered a disabled adult child because the Social Security benefits which they receive are based on the earning records of their parents.

When the parent of a disabled adult child retires, the DAC is entitled to receive 50% of the parent’s retirement benefit. For example, if the child is currently receiving income at the current Supplemental Security Income (SSI) rate of $750 and he/she is eligible for $790 from the parent’s retirement benefits, the child receives $790 – the child is entitled to accept the higher amount.

When a disabled adult child’s parent dies, the benefit is increased to 75% of the parent’s retirement benefit. If the surviving parent also dies, the DAC may contact the Social Security Administration to apply to switch over to the higher benefits.

March 25, 2019
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What is a guardian advocate in Florida?

By Elder Law, Guardianship

The appointment of a guardian advocate is a less intrusive alternative to a full guardianship. As defined by the Florida Statutes, a guardian advocate may be appointed “…for a person with developmental disabilities, if the person lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for his or her person or property or if the person has voluntarily petitioned for the appointment of a guardian advocate.” A guardian advocate may also be appointed for mental health patients who are incompetent to consent to treatment.

What makes a guardian advocacy distinct from a guardianship is that, whereas a guardian may be assigned to any incapacitated individual, there are specific eligibility requirements that a ward must meet for the court to appoint a guardian advocate. In addition, the appointment of a guardian advocate does not require an examining committee’s finding of incapacity. The duties and responsibilities of the guardian advocate are the same as those of a guardian – however, a guardian advocate may not be required to file an annual accounting on behalf of the ward, if the court determines that the ward’s only income is Social Security benefits.

The attorneys at Bach, Jacobs & Byrne, P.A. are highly-skilled and experienced guardianship and elder law attorneys. If you or a loved one is seeking a guardian advocacy, please call us at (941) 906-1231 to set up a consultation.

 

March 19, 2019
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When can trust and estate litigation occur?

By Guardianship, Probate

Though most matters in probate court go unchallenged, certain situations can arise which necessitate probate, trust, or guardianship litigation. Some common such scenarios include, but are not limited to, the following:

-A will is challenged due to a question of the competence of the testator

-There is a dispute over the way a will/trust is worded or structured

-The installation of a guardianship is being contested

-A trustee is attempting to modify or terminate a trust

-A beneficiary is suing a fiduciary for a breach of their duty in administering the probate or trust

If you are in a situation involving probate, trust, or guardianship litigation, call the lawyers at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up an appointment to discuss your options.

November 19, 2018
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Can a guardianship proceeding be contested?

By Guardianship

Yes: any interested person can contest the appointment of a guardian for a given ward, just as any interested person can petition the court to declare that ward incapacitated and in need of a guardian.

The process of determining the capacity of the ward begins with a petition for incapacity, which initiates the appointment of a three-person committee to examine the ward. This committee is made up of at least one psychiatrist or physician and two other health care professionals. Should the majority of the committee members find the ward to be of sufficient capacity, the guardianship proceeding will stop; however, if the majority finds the ward to be incapacitated, the proceeding will continue.

What follows is a final evidentiary hearing on the ward’s incapacity. Here, any person contesting the incapacity of the ward is permitted to present evidence and witnesses to the court. If the alleged incapacitated person is still found to be incapacitated, the guardianship hearing comes next. Florida practice is to pursue lesser restrictive alternatives short of full-fledged guardianship first – but, if a guardian is eventually appointed, the right to appeal remains open. Even after a guardianship is in place, any interested person, including the ward, may file a suggestion of capacity, which could ultimately result in the termination of the guardianship should the court find the ward to have restored capacity. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced guardianship litigators and can represent parties to a contested Florida guardianship.

November 13, 2018
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