If this isn’t a fundamental human right, I propose to make it one – the right to muddle through. This has been bothering me. America is supposed to be the land of the free, but that freedom becomes precarious when you reach “old age”. Florida’s Guardianship Law permits a Circuit Court Judge to strip you of all of your civil and personal rights. I’ve seen it happen in a 5 minute hearing. 5 minutes! That is all it takes to become a “ward of the state.” Unfortunately, unless we can start a massive human rights campaign right now, “the right to muddle through” is being lost here in Florida.

Despite legislative efforts to make it harder for courts to remove either your rights or to bypass your personal estate planning choices, the “system” is biased in favor of “fixing” perceived problems. For example, if one spouse has dementia, but the other elderly spouse is doing what the impaired spouse wants, just as a spouse or as agent under a power of attorney or healthcare surrogate, keeping the household going and caring for the impaired spouse, muddling through in a less than perfect manner – maybe late on a bill payment, forgetting a doctor’s appointment and having to reschedule – the system is biased toward jumping in to “fix” things by appointing a professional guardian who will (theoretically) pay all bills on time, get you to the doctor on time, monitor your medications, etc.

So, in any family where there is a problem, such as sibling rivalry, animosity toward a step-parent, a family member with money or drug problems, etc., the potential for a disgruntled person to try to use the courts to wrest control of the family or family fortune exists. Professionals who work within the elder care system can respect the estate planning choices made before the onset of dementia and try to work with the designated family member, rather than running to the court for an easier-to-work-with professional. If professionals think through each situation carefully and don’t presume that they know better than the ward did when those choices were made, a subtle change in the attitude of people in the “system” could bring about profound change in protecting the right to “muddle through.”

Families—establish a Revocable Living Trust and fully fund it. A guardianship generally won’t obtain power over trust assets and your choice as successor trustee is more likely to be honored, because a separate lawsuit would be required to make changes. Removing the temptation for a disgruntled family member or overzealous professional will go a long way toward protecting your choices.

I recognize that elder abuse, theft of assets, must be dealt with quickly. But I’m talking about that grey area in between abuse on one end and competence on the other. Does anyone else think this right is as important as I think it is?

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