Many of my clients are adult children or close relatives of seniors who are having serious memory problems. In many cases, the senior did not, would not, and now, can not, make a durable power of attorney naming a trusted person to act as agent in case of incapacity. What are the options now?
Usually, the only option at this stage is guardianship – a process whereby the probate judge oversees guardianship administration.
First, a petition for incapacity must be filed by an interested party. The Court will appoint an examining committee of 3 persons to visit the ill person and determine if he or she is incapacited. The nature of the incapacity can be limited to the person or the person’s property, or both, which is called plenary guardianship. The ill person will also receive a court appointed attorney. An incapacited person is referred to as the Ward in these proceedings.
Second, the person who desires to be appointed guardian must apply to do so. The Court must approve the guardian. Sometimes, a bond will be required, depending on the size and nature of the assets. The new guardian is also required to take a guardianship education course, unless it is waived by the Court.
The responsibilities of the guardian are dictated by Florida statute. A guardian of property is required to file an initial guardianship report within 60 days of appointment. Such report must contain an inventory detailing the property, assets, and income of the Ward. The inventory must also include any trusts of which the Ward is a beneficiary.
Thereafter, each guardian must file an annual accounting with the Court. The annual accounting must include a full and correct account of the receipts and disbursements of all the Ward’s property over which the guardian has control. The accounting must also contain a statement of the Ward’s property on hand at the end of each accounting period.
Florida law also now provides that a plenary or limited guardian of the property of the Ward has the power to create or amend a revocable trust or create an irrevocable trust with the Ward’s property for estate, gift, or tax planning. This power is important in Medicaid planning and for Special Needs Trusts.
A guardian is a fiduciary and must always act in the Ward’s interests. At the Law Office of Debra G Simms, we offer full guardianship services, from preparing the petition and guardianship pleadings, attending court, to assisting the guardian in executing the above detailed responsibilities.
Call us for a consultation.
Debra G. Simms
Orlando: 407-331-4529
