Legal Issues

Definitions:

Guardianship is a legal way of protecting an adult who is not able to care for himself/herself, make decisions in his/her own best interest, or handle assets. Through this process, another person is appointed to act for the adult, in one or more life areas. The person for whom a guardian is appointed is called a Ward. There are several types of guardianship in Florida; each is detailed below.

Guardian Advocate is a special form of guardianship that is only available for people with developmental disabilities and their families. It is found in the Developmental Disabilities Act, Chapter 393, of the Florida Statutes. Though less expensive, less intrusive and easier to implement, it is similar to limited guardianship in its effect, and in the fact that only those rights that the person cannot manage are removed. Though much preferred by families, not all attorneys (and some judges) are familiar with this type of guardianship.

The guardianships that follow are all covered by
Chapter 744 of the Florida statutes.

Full Guardianship is covered under Chapter 744 of the Florida Statutes. This is the most restrictive, complex and expensive type of protection. It removes all legal rights and powers from the person with a disability and gives them to the guardian. This type of guardianship is not necessary for the majority of people.

Limited Guardianship is also found under Chapter 744, Florida Statutes. It allows the ward to continue making decisions in those areas where he/she is capable. In other areas such as health care decision-making, the guardian acts for the ward. It is a more costly and intrusive process than guardian advocate.

Standby Guardian is the person who will take over the duties of guardianship, if the guardian or guardian advocate dies or becomes incapacitated. A standby may operate for 20 days after the death or incapacity of the guardian, before needing court confirmation of his/her appointment. The court may designate the standby at the same time the guardian is appointed. Having this information in the guardian's will is also helpful in expediting later confirmation of the standby.

Emergency (Temporary) Guardianship is used after a petition for guardianship is filed, but before the appointment of a guardian. It is used in situations where there is an imminent danger to the person, such as the need for a critical medical decision.

Voluntary Guardianship is for a person who is otherwise mentally competent but is unable to manage property. The person voluntarily petitions the court, which appoints a guardian or co-guardians of the property. Since this type of guardianship is voluntary, it can be terminated by the ward.

Foreign Guardian is the term for a guardian appointed in another state or country. Florida will recognize this guardianship when an authenticated order of the appointment is filed with the Clerk of the Court in the county where the ward lives.

Ward is the legal term for the person who has a guardian or guardian advocate appointed.

Joint bank accounts that require two signatures are a simple way of monitoring your family member's financial decision-making. (If you choose this option, be sure to set up a provision to access the money, should either of you die.)

Ceiling limit bank accounts can also be used to control expenditures. This tool will allow the person to withdraw up to a specified, preset amount (ceiling limit). However, no one else has control or access to the account.

Representative Payee is the person responsible for receiving government benefits (e.g., Social Security or SSI checks) on behalf of the family member, and is required to account for how this money is spent. To become a representative payee, contact the office that distributes the benefits and provide an explanation of why the person cannot handle money him/herself. This explanation should be in the form of written documentation from a professional who knows the person.

Power of Attorney A person who is disabled but is considered capable of giving informed consent may give power of attorney to another adult. This tool transfers the legal right to make decisions about finances, health care or both, when the individual becomes incapacitated. If choosing this option, be sure to make it a durable power of attorney, which will last until the death of your family member. The advantages of a power of attorney are that it does not take away any rights, it is inexpensive, and it can be done quickly without the courts.

Disadvantages include the fact that the individual can still sign a binding contract without notifying you or may withdraw the power of attorney at any time. Further, only one person can have power of attorney at a time. Lastly, some banks and doctors don't recognize a power of attorney; they are not universally accepted

Durable Power of Attorney specifies exactly the powers you are giving to the person who holds it. To avoid mistakes or omissions, an attorney should help you complete this document. Because a general power of attorney gets automatically revoked if you should become incompetent, Florida permits a power of attorney to be designated as durable, meaning it is not affected if you become incapacitated and it lasts until the death of the person who gave it.

Informed Consent can only be given by an adult who is considered legally competent, and who does not have a guardian or guardian advocate to whom this right has been given. It requires a person to be capable of understanding his/her rights, as well as the consequences and potential risks of transferring these rights.

Advance Directives are documents in which you make decisions about future health care. A Living Will and/or a health care surrogate fall into this category.

A Living Will allows a person to state which medical measures may be withheld in the case of a terminal condition. A typical living will can prevent doctors from using feeding tubes or breathing devices to keep someone alive. A living will must be in writing, signed by you (or if you're physically unable, by a witness attesting to your mark), signed by 2 witnesses (one of whom is not a spouse or blood relative), and address terminal illness and life-prolonging procedures. Only a person who is capable of giving informed consent can sign a living will.

DNRO, Do Not Resuscitate Order refers to a specific state form which instructs emergency rescue personnel not to resuscitate a person in a crisis situation. This form is only in effect outside of a hospital or a health care setting. It can be obtained from the Florida Office of Emergency Medical Services.

A Health Care Surrogate allows you to designate another person to make decisions for you about medical care, applying for medical benefits, or transferring from one facility to another. The authority of the surrogate only occurs if you become incapacitated, or are otherwise unable to speak for yourself. This designation can be done at the same time as a living will.

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