In Florida, Guardianship can often be an expensive and slow process. In a Guardianship, the Court appoints a “guardian” over a person (the “ward”), the person’s property, or both. This happens when the ward is deemed incapacitated, which can occur due to:
- Mental illness that leads to the ward not being able to manage their own affairs;
- Physical illness or injury which makes it impossible for the ward to manage their own affairs effectively; or
- The ward’s minority (under the age of 18).
A comprehensive estate plan can help adults avoid guardianship completely and, in the case of minors, avoid guardianship over assets left to a minor while simultaneously allowing a minor’s parents to tell the Court who they would like to care for their children.
At Lavender Greenberg PLLC, an experienced Estate Planning Attorney will help you compile a comprehensive estate plan to avoid Guardianship wherever possible. To do so, we utilize the following:
Durable Power of Attorney: A document granting legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). This document allows the agent to act on behalf of the principal in their legal and financial affairs without a court order. Durable powers of attorney make filing for guardianship unnecessary in many situations where it would otherwise be needed.
Example: Harry and Wendy have listed their second home for sale because they just retired and need the money to meet expenses. They have accepted an offer where the contract states they will close in 30 days. Before they sign the papers, Harry is in a tragic car accident and ends up in a coma. Without an estate plan in place, Wendy would need to file for guardianship over her husband to be able to sell the property. This could potentially cost thousands of dollars in legal fees and lead to her missing the close date. The use of a durable power of attorney could have avoided this result, as Wendy would have be entitled to sign on his behalf so long as she was acting based on his best interests.
Healthcare Surrogate. A document granted by a person (the principal) allowing another (the agent or attorney-in-fact) to act for him or her on medical matters and treatment decisions if the principal is unwilling or unable to make their own healthcare decisions. This avoids the need for the Court to appoint a guardian to manage medical decisions.
Example: John, a widow with two adult children, suffers from a stroke and is currently unable to make his own healthcare decisions. His children disagree about the appropriate course of treatment. His daughter files for guardianship and his son challenges her petition, asking that he be appointed instead of daughter. Instead of coming together as a family, his children are fighting during an already difficult time. The use of a Designation of Health Care Surrogate appointing a specific individual to make health care decisions on John’s behalf could have avoided the expense and strain of filing for Guardianship.
Revocable Trust or Wills with Testamentary Trust Provisions. When assets are owned by a revocable living trust, and the person who created the trust becomes incapacitated, a Successor Trustee can take over as Trustee during the period of capacity without any court intervention. Additionally, if assets greater than $50,000 are given outright to a minor child upon someone’s death, the assets must be managed by court-appointed guardian until the child’s 18th birthday, after which the child will receive the assets outright. At the Miami Estate Planning Firm Lavender Greenberg PLLC, we encourage our clients to leave gifts tominors through revocable living trusts created during life or testamentary trusts created upon death, in order to: (1) avoid guardianship before a child turns 18; (2) place a person the client trusts in charge of the assets; and (3) avoid giving the child full access to the assets once they turn 18, waiting until they have matured and learned financial management skills to do so instead.
Guardianship Provisions for Minor Children. If our clients have minor children, we draft documents naming who they would like to serve as the Guardian(s) of their children so that a Court can weight their wished in determining the best interests of the minor children.
To speak with an experienced Miami Estate Planning Attorney, call us at (786)832-4694 or email monique@lglawmiami.com.
