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What is Guardianship and Why is Everyone Talking About it?

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Erica Berger-Hausthor

Attorney

The purpose of Guardianship is to protect and support persons who are incapacitated and in need of assistance. The Florida legislature intends that Guardianship be the last resort. If a person has a Durable Power of Attorney or Health Care Surrogate in place that is working effectively, then most often, a Guardian is not needed. Guardianship can be total, or partial. Even if Guardianship is needed, it can (and should) be limited only to areas of the person’s life where there is no less restrictive alternative. For example, if an incapacitated person has a Designation of Health Care Surrogate but no Durable Power of Attorney, the appointed Guardian may be Guardian of the Property only and the Health Care Surrogate will continue to make medical decisions.

A Guardian is appointed and monitored by the court. If a family member or a friend is willing and qualified to serve, the court can appoint them as Guardian. If the court does not appoint a friend or family member, they can appoint a Professional Guardian. All Guardians must follow a number of statutes and rules, but Professional Guardians have additional requirements to ensure the protection of the person who is incapacitated. Florida is so deeply concerned about protecting incapacitated residents that they have an Office of Public and Professional Guardians whose sole role is to develop, oversee, and enforce standards of practice for Professional Guardians. Recently, local news featured the resignation of a Professional Guardian accused of abusing her powers in numerous cases. This is an uncommon situation; as with any profession, despite the occasional exception, most Professional Guardians are truly wonderful people who are dedicated to providing outstanding service. 

Professional Guardians have a difficult and important job. Their job is to advocate and assist with the needs of the person who lacks capacity (often referred to as “the Ward”). This puts them in a position with great responsibility to the courts, to families, most importantly, to the Ward. Many do this work out of pure dedication to helping people. Sometimes the person they are serving is cooperative and kind, and sometimes they are resentful of their loss of independence and determined to act in a manner contrary to their well-being because they are medically incapable of making informed decisions. 

Guardians are compensated from assets of the Ward. If a Guardian is appointed to help someone who does not have any assets, payment is not guaranteed and quite often, not likely, unless funds are available through another source, such as a charitable organization. What a lot of people don’t know is that sometimes Guardians do not get paid for their work, even if they spend a substantial amount of time working to help others. 

What can we do to make sure that there are caring people available to help the less fortunate in Florida who need help through a Guardianship? For one, support Guardians and their work! Educate yourself about what they do and say thank you. Want to do more to support local Professional Guardians? Consider donating to a charity that supports local Professional Guardians, such as the Family First Firm Foundation, a 501(c)(3) charitable organization established to provide funds to reimburse these selfless individuals for their out of pocket expenses and to offer financial support so that they can continue to devote their lives to this cause.

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