Guardianship is a legal concept where, if a court determines that a person (called the “ward”) is not capable of handling his or her own affairs due to age or incapacity, the court appoints a “guardian” to handle these affairs for the ward. We’ve previously addressed some predatory practices that have put individuals at risk (see here). Recently, new laws have taken effect in Florida to help provide increased protections for wards (see here).
Some of these changes give further guidance that a court must follow when determining whether a person is incompetent and appointing a guardian. The court must now give more consideration to the desires of the ward and his or her close family. Other changes give further guidance that the guardian must follow when acting on behalf of the ward. Furthermore, a guardian that abuses his or her power over a ward could be subject to criminal charges.
Additionally, the recent case of Saadeh v. Connors reiterates that the purpose of Florida’s guardianship laws is to “to protect the public welfare” by protecting the rights of incapacitated persons. As a matter of law, the ward is the primary and intended beneficiary of his or her estate. A guardian clearly owes a fiduciary duty to the ward. Because Florida laws have such a strong purpose of protecting incapacitated persons, even an attorney who represents the guardian of the ward owes a duty of care to the ward.
We will not know whether these new laws prove to be helpful until such disputes come before the court. Avoiding guardianship disputes altogether by planning ahead remains the best method of protecting yourself and your estate. Otherwise, you and your estate could become an “experiment” for the court to test these new laws. Why let the court try to figure out what is best for you when instead you can make your intent clear in a comprehensive estate plan? Comprehensive estate plans are designed to operate in private and avoid court intervention.