The media has been buzzing for months regarding the conservatorship (called an adult guardianship here in Florida) of Brittney Spears and the legal ramifications that being under a guardianship means to an individual. However, many Florida estate and elder attorneys fear that the media attention on this case might cast a stigma on an important legal tool that’s regularly used to help seniors and those with disabilities who can no longer manage their own affairs.
That’s essentially what a guardianship is for; it’s a court order allowing someone else the right to make financial and medical decisions for an individual who is found to be incapacitated or not otherwise of sound mind. Sometimes, the person who serves as the guardian of an incapacitated adult is a family member, and other times, it’s a professional who is appointed by the court such as a lawyer or a CPA.
Here in Florida, if a guardianship is ultimately granted, the ward relinquishes control of their finances, medical care, and estate decision-making to the guardian. While this may mean that the person lives under various restrictions (like not being able to marry, vote, manage a bank account, drive, etc.) courts have tried to ensure that the ward of the adult guardianship can do as much as the judge or a physician deems they can.
It’s important to note, and it’s been my experience as a Florida Guardianship lawyer, that an adult guardianship is difficult to obtain and not a process that’s undertaken lightly. Here are a few examples of when a guardianship may be necessary:
- An elderly person has been diagnosed with dementia and is rapidly losing the ability to communicate, pay bills, and care for him or herself. The doctor says the person no longer has the cognitive ability to sign legal documents, but no one else has been named as the person’s power of attorney or healthcare agent to step in and take over control. In this case, the family needs to go to court to ask for a guardianship.
- An unmarried 20-year-old is hit by a drunk driver and is on life support fighting for his or her life. HIPAA laws may prevent a parent from making life-or-death decisions, getting medical records, or communicating with doctors. Mom or dad may need to ask the court for an emergency guardianship to intervene on their now-adult child’s behalf.
- A child with special needs turns 18. He or she is now considered an adult under the law, and mom or dad can no longer manage his or her affairs without legal permission. To retain those rights to help their child with disabilities, mom or dad will need to ask the court for a full or limited guardianship over their child.
It’s also important to know that the court will keep a close eye on the guardianship. Hearings will regularly be held where details about the person’s continued incapacity will need to be presented to the court. The terms of the guardianship may ultimately change as the person’s condition improves for better or worse.
It should be acknowledged that like anything, there is always the possibility for abuse. The case of Brittney Spears and the recent release of the Netflix movie “I Care A lot” are perfect examples of how this can happen. It’s why we try to encourage our clients to appoint someone they trust to serve as their financial power of attorney or healthcare agent before a crisis strikes so that a guardianship is never needed. It is the best way to avoid the possibility of someone else having complete control of your affairs if something happens.
Guardianships are complicated and complex procedures and it’s natural to have a lot of questions if you are considering pursuing one for a disabled or incapacitated loved one. Please know that we are here as a resource for you, and we would be happy to talk through your options and help you evaluate the best path forward. To schedule an appointment, simply call our office at (813) 438-8503.