Are you seeking conservatorship on behalf of a loved one? Or do you suspect conservatorship abuse? If so, you should consult with an experienced Florida conservatorship lawyer to discuss your rights and remedies under the state’s conservatorship laws.
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 Is a Conservatorship?
Guardianships and conservatorships are words that are often used interchangeably; however, these appointments have important differences. The critical distinction between guardianship and conservatorship in Florida involves the circumstances under which the designation is established. In contrast to guardianships—where the designation stems from the ward’s incapacitation—conservatorships emerge from the need to manage the affairs of an “absentee.”
Guardianship
Under Florida Statute § 744, a family member may file a petition for guardianship when their loved one (the ward) has become incapacitated due to an injury or illness that has impacted their judgment and ability to make decisions for themselves. The court may confer upon a guardian the duties and responsibilities to handle the financial, legal, and sometimes healthcare matters on behalf of the incapacitated individual.
Conservatorship
Under Florida Statute § 747, conservatorships refer to a legal relationship where a court appoints one person (the conservator) to manage another person’s estate. This is very similar to guardianship, and a conservator has all the powers, rights, and duties of a guardian. The difference really lies in the recipient. In guardianship, the person who needs help is typically an incapacitated individual who can no longer make decisions for themselves. In a conservatorship, the need to appoint a conservator arises out of the fact that the absentee is missing or has disappeared for no known reason. This is a particularly painful situation for the missing person’s loved ones. But once it is clear that the absentee cannot be located, the conservator must petition for a conservatorship and establish that they have an interest or depend on the absentee’s estate.
Who Is an Absentee?
Florida Statutes § 747.01 provides that absentees are any of the following:
- Any person serving in the Armed Forces, the Red Cross, or Merchant Marine during any period when a state of hostilities exists between the United States and any other power and for one year thereafter, who has been reported or listed as missing in action, interned in a neutral country, beleaguered, besieged or captured by the enemy; or
- Any resident of this state, or any person owning property herein, who disappears under circumstances indicating that they may have died or may have disappeared due to mental derangement, amnesia, or other mental cause.
A lawyer can help you determine whether your family member’s disappearance renders them an “absentee” under Florida law.
What Is Conservatorship Abuse?
Guardians tend to have broader rights and responsibilities than conservators because guardians must make financial and healthcare decisions on behalf of the ward. In comparison, conservators do not need to make healthcare decisions for the absentee. However, the fundamental nature of surrogate decision-making designations can lead to abuse under either circumstance.
Unlike guardianships, where abuse might be more evident and rampant, conservatorship abuse in Florida is nuanced and requires a comprehensive understanding of the law. Individuals should consult with Florida estate planning attorneys to fight conservatorship abuse.
Many claims against a conservator stem from a defect in the conservatorship petition. In Florida, conservatorship petitions must include the following:
- The exact circumstances which resulted in the person becoming an absentee,
- The necessity for establishing a conservatorship,
- Whether the person has a will, and
- A detailed statement of the absentee’s estate.
Claims against a conservator could be based upon any of the following:
- The conservator failed to establish their interest in the absentee’s property,
- The conservator could fail to establish that the absentee was a legal resident of the state,
- The absentee might have provided an adequate power of attorney authorizing another person to act on their behalf under the circumstances, or
- A person with an interest in the absentee’s estate could claim they did not receive proper notice of the conservatorship proceedings.
In some instances, the absentee may wish to terminate a conservatorship. A conservatorship termination may be appropriate if the absentee returns and signs a petition to remove the designation.
Guardianship Abuse in Florida
To fight against guardianship abuse in Florida, family members should consult with an experienced estate planning lawyer. A lawyer can help loved ones in contesting, suspending, and removing guardians. There are many reasons one may wish to dispute guardianship. Some reasons to dispute a guardianship include:
- The ward no longer needs a guardian,
- The guardian is no longer acting in the best interest of the ward, or
- The guardian is abusing the ward.
Guardianship abuse in Florida can take many forms, including physical, emotional, and financial abuse. Some signs of guardianship abuse include the following:
- Unexplained injury or illness to the ward,
- The ward begins exhibiting increased agitation and anxiety,
- Past-due bill notices,
- Changes in family and charitable gifting, and
- Changes in estate planning documents.
In addition, the ward may challenge a guardian’s eligibility or contest the finding of incapacity. These cases are emotionally rough and often involve the interplay of medical providers, family members, and the legal system. Thus, if you suspect abuse, you should consult with an attorney to discuss the best way to proceed with seeking a conservatorship abuse penalty.
Is Someone Committing Conservator Abuse Against You or a Loved One?
If you believe that someone is engaging in conservator abuse, reach out to Beller Law, PL for immediate assistance. At Beller Law, PL, our Florida conservator and guardianship attorney has more than 25 years of experience. We are committed to helping individuals and families through the complex and often stressful process of challenging the actions of conservators and guardians. We take a unique, client-centered approach to every case we handle, taking as much time as necessary to listen to your concerns before proposing any course of action. To learn more and to schedule a free consultation, give us a call at 904-288-4414. You can also reach us through our online form, and one of our team members will contact you soon.