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Guardianship

Guardianship vs. POA: Exploitation

By Elder Law, Estate Planning, Guardianship

While appointing a power of attorney can mitigate the need for a guardianship, there are other times in which a guardianship is necessary.

In the last blog post, we discussed the need for a guardianship in the event that the incapacitated person lacks competency and makes harmful decisions. A guardianship may also be needed if the power of attorney does not act in the best interest of the incapacitated person.  If the power of attorney is exploiting the individual by depriving them of their funds or their rights, a court will appoint a guardian to prevent any continued abuse.

If you have more questions on this topic, please contact our office at (941) 906-1231 to speak with one of our attorneys.

March 31, 2017
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Guardianship vs. POA: Incapacitated Individuals

By Elder Law, Estate Planning, Guardianship

In estate planning documents, an agent can be  chosen to act under a power of attorney, which is especially  useful in the event that the principal becomes incapacitated and cannot make decisions for himself.  Typically, a power of attorney is given the authority to control financial affairs. Other times, powers of attorney have complete control over the ward.

When the power of attorney is properly advocating for the ward, and the ward is cooperative, a guardianship may be avoided. However, there are instances and situations that nonetheless necessitate a guardianship. If the incapacitated individual continues undertaking financial activities that put their assets at unreasonable risk of depletion and wasting, a guardianship may be necessary. The guardian can make decisions regarding the ward’s financial, legal, and medical affairs, but some decisions must be approved by the court. By appointing a guardian, the court is able to preserve the ward’s property from dissipation.

If you have more questions on this topic or wish to set up documents, please contact our office at (941) 906-1231 to speak with one of our attorneys.

March 28, 2017
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Planning with Your Sibling to Care for Elderly Parents

By Estate Planning, Guardianship, Long-Term Care

Instead of coming up with a strategy for caregiving arrangements right after an emergency room visit or life-threatening event, it is good for families to meet early during a time when everyone is relaxed and rational. By meeting early, families can make arrangements when they are clear-minded and collected.

Another effective step in planning for caregiving is matching the parents’ wishes and needs with the capabilities of the siblings. For example, many elderly parents need help in areas like transportation, managing finances, and healthcare. Depending on the situation, one sibling might be able to assist with transporting the parents while another may be greater help in paying bills.

Lastly, it is important for siblings to remember that asking for outside help is sometimes necessary. If you and your siblings are still struggling to meet the needs of your parents, it is good to contact volunteer, hospital, and senior care programs that can provide their abilities and time.

January 6, 2017
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Florida’s process of determining adult incapacitation (in a nutshell)

By Elder Law, Guardianship

The process of determining an adult to be incapacitated can be extensive and challenging for loved ones to watch. However, it is a sometimes necessary task to undertake in order to protect and care for your loved ones.

In Florida, the incapacitation process typically begins with a family member or friend filing two petitions with a Florida Court: the Petition to Determine Incapacity and the Petition for Appointment of Guardian. A court appointed attorney is assigned to the alleged incapacitated person, however, the alleged incapacitated person may use his or her personal attorney.

After an attorney has been appointed, the members of a three-person examining committee must be designated. These individuals may be social workers, psychologists, physicians, or be of a different background. The committee is responsible for evaluating the individual and preparing a report that includes a mental, physical, and functional assessment. Each report must include a variety of evaluations such as a diagnosis, or recommended treatment, the ability to retain his or her rights, the extent to the incapacity, and the results of the examinations.

When the three-person examining committee members have finished filing their reports with the court, a hearing on the Petition to Determine Incapacity is held.

If you have questions about the guardianship process for potentially incapacitated individuals, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

November 22, 2016
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What is an elder law attorney?

By Elder Law, Estate Planning, Guardianship, Medicaid Planning, Medicare, Probate, Tax Law

An elder law attorney, also known as an elder care attorney, is familiar with the state and federal laws that impact seniors and their well-being.

These attorneys are well-versed and specialize in a range of areas:

  • Estate planning
  • Powers of attorney
  • Medicaid
  • Medicare
  • Veterans benefits
  • Probate and trust administration
  • Nursing homes
  • Elder abuse and fraud

Elder law attorneys allow you to plan ahead. By meeting with an elder law attorney and setting up documents, you can protect your assets, properly pass your estate to heirs, and name individuals to make health care and financial decisions for you when you are unable.

If you have further questions or wish to set up documents, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

September 30, 2016
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Governor Scott signs law to protect seniors from guardianship abuse

By Elder Law, Guardianship

After years of reports and protests from Florida families about elder abuse from professional guardians, a new law that aims to reform the guardianship system took effect in June 2016.

This new law increases the state’s first regulatory authority over guardians appointed by courts to make decisions for incapacitated individuals. The passing of the law creates an Office of Public and Professional Guardians that is required to develop rules and practices for professional guardians. The law also gives the office the power to revoke a guardian’s registration when deemed necessary.

Elder law attorney Babette Bach was involved in the creation of this law; she spent the last year working with 15 others to develop the bill.

By giving oversight to the Department of Elder Affairs, the state hopes to regulate guardians. The office is expected to lead investigations, conduct hearings, create penalties, and establish standards of practice for public and professional guardians.

September 13, 2016
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Florida Senate adopts several elder care bills

By Elder Law, Estate Planning, Government Benefits, Guardianship

Bill 0080 — Relating to Family Trust Companies

  • This bill revises the Family Trust Company Act to require that all family trust companies apply as a licensed family trust company, register as a foreign licensed family trust company, or stop doing business by December 30, 2016 in the state of Florida.
  • It also requires the family trust company to have at least three directors/managers, with at least one of those directors/managers being a resident of Florida.

Bill 0232 — Relating to Guardianship

  • The passing of this bill renames and expands the Statewide Public Guardianship Office to the Office of Public and Professional Guardians, giving it the responsibility of the administrative duty of writing the rules for the regulation of professional guardians.
  • The bill establishes stricter regulations of professional guardians, who previously have not been closely supervised by the state

Bill 0494 — Relating to Digital Assets

  • Dubbed the “Florida Fiduciary Access to Digital Assets Act,” this bill allows fiduciaries to manage and control digital assets the same way they manage tangible assets.
  • This bill also grants custodians of digital assets the right to interact with the fiduciaries in order to honor the fiduciaries’ requests
  • Lastly, Bill 0494 allows for courts to authorize a guardian the right to access the digital assets of a ward, if the circumstances permit

Bill 1335 — Relating to Long-term Care Managed Care Prioritization

  • This bill not only requires the Department of Elderly Affairs to keep a wait list for the enrollment for community-based services, but also requires the DEA to prioritize individuals through a frailty-based screening tool.

These bills took effect July 1, 2016.

August 12, 2016
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Avoiding Guardianship

By Elder Law, Guardianship

If you believe that you or an elderly person are being exploited financially, take immediate action to protect the alleged victim of the exploitation.  Acting quickly can increase the chance that misappropriated assets can be recovered.  An example of financial exploitation would be if a son or daughter took money out of a parent’s account to help with their own personal financial troubles.  In a situation like this, you should call adult protective services, the Elder Abuse Hotline, the police, and an experienced elder law attorney.  Florida laws protect elderly residents from financial exploitation and if misappropriated assets are not returned by the exploiter within 60 days, you could be entitled recover triple your money.

An elder law attorney may be able to help you protect your assets and pursue remedies under Florida’s civil theft statute.  To speak with Florida Board Certified Elder Law Attorney Babette Bach, Esq. call our office at (941) 906-1231.

Adult Protective Services: (877) 595-0384

Elder Abuse Hotline: 1-800-962-2873

April 26, 2016
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End of Life Care Plans

By Asset Protection Planning, Elder Law, Estate Planning, Guardianship, Long-Term Care

Distinct from healthcare directives such as a healthcare power of attorney or a living will, a personal care plan is a document telling your loved ones how you wish to be taken care of throughout your life if you lose capacity.  Living wills only concern end of life medical treatment but personal care plans can be used to express desires such as nursing home preferences and what types of entertainment and hobbies they should have access to.  Although on their own end of life care plans are not enforceable, their power can be strengthened by tying them to a trust and directing that the trustee use the assets in the trust to ensure your desires are met.

If you are interested in setting up an end of life care plan or healthcare directives to ensure that your later life care will be carried out on your own terms, contact Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.

February 5, 2016
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True Link Card – The card for professionals

By Asset Protection Planning, Guardianship

The True Link Prepaid Visa Card is a better way for professionals such as guardians, fiduciaries, and trustees to manage and protect their clients’ finances.
With the True Link Card you can easily manage and monitor funds for each client. With online access you have the ability to transfer and disburse funds, block specific merchants, put a cap on ATM withdrawals, and prevent over-the-phone and online spending.
You can consolidate all spending into one prepaid debit card that can be funded online or over the phone. You can add money by transferring funds from a checking, savings, special needs trust or other source. You can also schedule recurring transfers and auto-refills.
As the administrator, you can meet the specific needs of each of your clients by approving certain expenses such as groceries, medications and social activities while restricting unapproved expenditures, for example online shopping or liquor store sales. You can prevent or limit cash withdrawals so your client can spend funds that you approve.
Setting up a True Link account is easy. With a low monthly fee of $10.00, you can start by creating an account online or over the phone with a True Link Advisor. All it takes is 5 minutes.
www.truelinkfinancial.com or 1-800-299-7646 for a Schedule of Fees and Charges
Note: This firm has no affiliation with this company and receives no compensation for this blog. It is strictly intended as an aid for our guardians and fiduciaries.

December 11, 2015
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