For many adult children who have concerns about their parents’ mental capacity, establishing guardianship is a good option. In Florida, guardianship confers clear legal rights, and it ensures that the appointed guardian will be able to speak on behalf of the “ward” when necessary. But, establishing guardianship can have certain drawbacks as well. And before seeking guardianship, you will want to make sure that you have thoroughly considered all of the implications involved.
Notice: Please note that Rebeccah Beller is a Florida attorney specializing in guardianship matters in the state of Florida. Our legal team only handles guardianships within Florida and cannot provide assistance for cases outside of this jurisdiction.
What Factors Should You Consider before Seeking Guardianship of Your Aging Parent in Florida?
With this in mind, what questions do you need to answer before deciding to seek guardianship of your aging parent? Here are seven important factors to consider:
1. Is Your Parent Likely to Be Considered Legally Incapacitated?
When considering guardianship, one of the first issues that need to be addressed is the issue of capacity. If your parent currently has legal capacity, then he or she can consent to the appointment of a guardian (more on this below), and this can streamline the process significantly. However, if your parent is legally incapacitated, then you will need to file a Petition to Determine Capacity and an involuntary Petition for Appointment of Guardian or Application for Appointment as Guardian, and this is comparatively a much more involved process.
2. Does Your Parent Agree That It Is in His or Her Best Interests to Have a Guardian Appointed?
If your parent is capable of consenting to the appointment of a guardian and agrees that establishing guardianship is in his or her own best interests, then you can complete the process without significant court involvement. You will still need a court order to formally establish guardianship. But as long as no one objects to your petition or application, then you generally should not run into any issues along the way.
3. Are You and Your Siblings or Other Family Members in Agreement on Who Should Become Your Parent’s Guardian?
If you have siblings, aunts, uncles, or other family members who share your concerns about your parent’s well being, then it may make sense to discuss your plans with them before you move forward. Understandably, these individuals may have their own thoughts about how best to proceed, or they may simply have questions about what it means to have a guardian appointed.
In either case, proactively addressing their concerns and formulating a plan that works for everyone will often be best, and our attorney can give you some pointers for having a productive discussion. However, if you are concerned about your parent’s health or finances and believe it is best that you act on your own, then this is an approach that we can help you consider as well.
4. Are There Less-Restrictive Alternatives Available?
While establishing a guardianship may be necessary, it is also possible that less-restrictive alternatives could be available. Once your parent has a guardian appointed, he or she will lose certain rights, and this is an important factor that requires careful consideration. Due to this concern, Florida law requires that guardianship be the “least restrictive” means for protecting your parent, and it will generally be prudent to consider alternatives such as:
- Establishing a joint bank account
- Having your parent execute a durable power of attorney
- Encouraging your parent to create a living trust (also known as a revocable trust)Will Your Parent Need a Guardian of the Person, Guardian of the Property, or Both?
5. When deciding what constitutes the “least restrictive” means for protecting your parent, it is also important to consider what type of guardianship is necessary. In Florida, there are two main types:
- Guardian of the Person – As a guardian of the person, you would have the authority (and the obligation) to make decisions regarding your parent’s medical care, living situation, and other aspects of life.
- Guardian of the Property – As a guardian of the property, you would have the authority (and the obligation) to manage your parent’s finances.
Depending on your parent’s needs, it is possible to serve as a guardian of the person, guardian of the property, or both. The legal procedures for establishing both types of guardianship are similar, and both require equal consideration of the alternatives that are available.
6. Are You Aware of the Legal Rights and Responsibilities of Guardians in Florida?
As a guardian, you will have both legal rights and legal responsibilities. As a result, in addition to considering your parent’s needs, you must consider your own ability to serve in the guardianship role as well. Are you prepared to manage your parent’s finances in addition to managing your own? Are you prepared to make difficult decisions about your parent’s health care? Are you familiar with the terms of your parent’s estate plan when it comes to health care management and end-of-life care? These are all important questions that you will need to answer as well.
7. Are You Prepared to Serve as Your Parent’s Guardian?
Serving as your parent’s guardian is a noble thing to do. It also comes with responsibilities that could impact your life for years to come. Before you decide to move forward, you need to make sure that you are prepared to do so, and you need to make sure that you are fully committed to being there for your parent consistent with (and as required by) Florida law.
Contact Us for a Confidential Initial Consultation in Jacksonville, FL
If you would like to speak with an attorney about seeking guardianship of your parent or exploring the alternatives that may be available, we encourage you to get in touch. To speak with one of our experienced attorney in confidence, call us directly or tell us how we can help online today.