Recently, there has been a lot of buzz around the need to fix the rules governing “professional guardians” (i.e., persons who have been appointed guardian over three or more legally incapacitated individuals) in order to protect Florida’s elderly from predatory practices. (See here, herehere, and here.) While the Florida legislature is taking steps to address the issue, you can mitigate your risk of becoming a victim by implementing anticipatory provisions in your estate planning documents.

Keep in mind, most professional guardians perform admirably and are a great resource available to help care for an incapacitated individual. But unfortunately, there are some predatory professional guardians in Florida, deemed “cockroaches” by Senator Nancy Detert, who seek out wealthy individuals and petition the court to determine the individual incapacitated. They then seek appointment as the individual’s guardian. Once appointed, these predatory guardians charge inordinate amounts of money for their services. And because Florida law allows any “adult person” to petition the courts to determine incapacity of another, there is nothing stopping these predators from running to the courts to seek an appointment of guardianship.

As a precaution against such an attack, you can make it difficult for a predatory guardian to obtain appointment as your guardian by simply designating a “Preneed Guardian.” A Designation of a Preneed Guardian creates a strong presumption that, if you are determined incapacitated, the court should appoint the person you designated as your guardian. In order for a predatory guardian to overcome this presumption and obtain appointment as your guardian, the predator must prove that the appointment of the person you designated would be “contrary to your best interests.” Because this is difficult for a predator to prove, your Designation of a Preneed Guardian acts as a deterrent.

Other estate planning tools, such as trusts or a Durable Power of Attorney, can also help prevent you from becoming a victim of these predatory practices.

For more information about how you can protect yourself through comprehensive estate planning, we encourage you to attend one of our monthly educational workshops.

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