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What You Need to Know About Guardianship

On April 27, 2015, according to the Bradenton Herald, the Florida Senate passed a bill that changed the way that guardians are appointed and also added additional protections against exploitation, abuse, and neglect. Figuring out guardianship can be complicated, and it’s important to protect those who are most vulnerable.

What is Guardianship?

Guardianship is defined by Florida Courts as when a person is appointed by the court to make personal and/or financial decisions for a minor or an adult. Guardianship can be either voluntary or involuntary. In voluntary guardianship, an adult who is mentally competent voluntarily petitions for guardianship because he or she cannot manage his or her own estate. Involuntary guardianship occurs when a court finds that an individual’s ability to make decisions is impaired and no other less restrictive alternative option is available.

Florida law also allows for limited and plenary guardianships. Limited guardianship is appropriate for someone who does not have the capacity to do some of the tasks necessary to manage his or her person or property, but does have the capacity to do some others. Plenary guardianship occurs when the guardian has the power to “exercise all delegable legal rights and powers.” In those situations, the subject of the guardianship, or “ward,” is unable to care for him or herself.

New Legal Protections in Guardianship

In the new bill, HB 5, which is awaiting the governor’s signature, new reforms should improve access to guardianship and protections for wards. The bill adds new protections into the emergency temporary guardianship process by requiring additional steps that are intended to discourage the use of the emergency process, which can be used to quickly remove rights. It would also require the rotation of professional guardians to prevent the appointment of guardians based on inappropriate reasons.

Elder Abuse and Guardianship

The new legislation is designed to place more limits on guardians to prevent elder abuse. A major impetus for the new legislation was a series from the Herald-Tribune, “Elder guardianship: A well-oiled machine.” The series focused on stories demonstrating the ease with which elder’s rights can be taken away and given to someone else, how those people can take advantage, and how difficult it is to step in and end the abuse.

Elder abuse is defined by the U.S. Department of Health and Human Services as a “knowing, intentional, or negligent act by a caregiver or any other person that causes harm or serious risk of harm to a vulnerable adult.” It can include physical, sexual, and emotional abuse, as well as financial exploitation, neglect, and abandonment. The topic has received other attention as well. The National Center for State Courts wrote an article to address the intersection of elder abuse and guardianship. The article identified the frequent problem of lack of screening, oversight, and accountability in the guardianship process.

If you or a loved one wants to learn more about the guardianship process, or if you are concerned about the welfare of a loved one, contact our Florida attorneys at the Millhorn Law Firm. Let us help you understand the process, and ensure that you or your loved one receives protection, support, and care.

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