However, many people do not know the differences between conservatorships and guardianships and their different uses. The following is a brief overview of the benefits and uses of both conservatorships and guardianships.

What are the main differences between conservatorships and guardianships?

While the terms are often used interchangeably, they are, in fact, quite different. When a person becomes incapacitated due to mental illness, injury or disability, a guardian will have the power to make decisions on their behalf and look after their finances and other affairs.

Conservatorships in Florida apply only to people who have gone missing. This means that a close family member of a missing person can gain a conservatorship over their estate. To do this they must be able to show that they hold an interest in the missing person’s estate or that they are financially dependent on them.

How are guardianships appointed?

There are many ways to have a guardianship appointed. Those planning their estate may choose to give someone a durable power of attorney for health care decisions. This will essentially mean that the power of attorney will then be able to make health care decisions on your behalf in the event that you become incapacitated.

If you are starting to plan your estate and you are interested in planning for a possible future illness, an experienced attorney can provide more information.

Estate planning isn’t just about designating what happens to your assets after you die. A good estate plan also plans for a person’s incapacitation. Who can make medical decisions for them if they can’t speak for themselves? Who can handle their financial and legal obligations if they’re unable to do so?

A serious accident or illness can happen at any age. However, if your 18-year-old is in a devastating car crash or falls ill and is left in a coma, as their parent, you have no legal right to make decisions about their medical care. You can’t even get information from their medical providers about their condition. In the eyes of the law, they’re adults, and their privacy is protected under the Health Insurance Portability and Accountability Act (HIPAA).

This can be avoided by having your child draw up a health care advance directive and designating you as their health care proxy. The directive lets the proxy and their medical team know their wishes for things like what kind of life-sustaining measures they want taken and under what conditions. As the health care proxy (known in Florida as “health care surrogate,”) you have the right to talk to their doctors and to make decisions on behalf of your child.

This will also allow you to handle their medical bills. However, it’s a good idea to also have another document in place that gives you power of attorney (POA) over their financial and legal matters. These may not be significant for someone in their late teens or early 20s. However, your child may have credit cards and student loans. They may rent an apartment. This POA allows you to deal with others on their behalf so that they don’t end up in financial jeopardy while they’re incapacitated.

If your adult child becomes incapacitated without documents like this in place, you might need to file an application to once again become their legal guardian. These guardianship applications can take time that you can’t afford. That’s why it’s wise to talk with an attorney about putting these estate planning documents in place for your child.

As you sit down to make a list of potential candidates for this role, you’ll want to make sure that you have full command of the different decisions that they may be called to make. Anyone that you appoint to the guardian role may have make to medical, financial, personal and social decisions on behalf of your child.

You shouldn’t simply write someone’s name down for the role without talking to them first. You’ll need to let them know virtually everything about your child and their needs. You’ll need to advise them of what their responsibilities would be as a guardian and then ask if they’d feel comfortable having to make such decisions for your child.

It’s important that you don’t just pick one person that could fill this role, but that you select an alternate as well. This will protect you and your child if something happens to your original appointee before you have a chance to update the document.

You should put your choice of guardian in writing once you’ve selected them. You’ll want to include this information in your will. You’ll want to clearly state that you expect this person to step in for your child as their guardian should you pass away before they’re 18. You should also have it state that you want that person to remain in that role after your child turns 18 if they have some type of intellectual disabilities.

Making sure that your special needs child is taken care of is important to you. An attorney in Miami can help you put the necessary wording in your will to ensure that your wishes are upheld in your Florida case.

A conservatorship is typically set up through an estate planning attorney through the probate court. It may benefit an elderly family member with dementia or an adult child that has a mental or physical disability. Setting up a conservatorship can give family members peace of mind. Several different types of conservatorships can be designated through a state’s probate court depending on the needs of the loved one.

A general conservatorship gives more power to the conservator than a limited conservatorship. A general conservatorship is typically used in those who aren’t able to care for themselves and can’t take care of their financial affairs. Limited conservatorships are best for developmentally disabled individuals who rely on government assistance. A limited conservator can oversee living decisions and daily care but has less financial oversight than those with a general conservatorship. Forms and interviews are required by the probate court in most states for conservatorships. Because the process can be lengthy, experts typically recommend that those desiring a conservatorship set it up as soon as possible.

Caring for a loved one with a physical or mental disability is a loving task that many find fulfilling. Acting as a conservator is one way of caring for an individual who is unable to care for themselves. An estate planning attorney may be able to help set up a guardianship or conservatorship. For example, an adult with Down’s syndrome may require a limited conservatorship by a sibling. This will allow the sibling to help the adult with daily care and living issues while not having to oversee their financial affairs.

One of the bill’s sponsors, Rep. Colleen Burton (R-Lakeland), said she saw the need for reform after a man choked to death when his caregiver had a do-not-resuscitate order placed without permission and removed his feeding tube. When testifying before the Justice Appropriations Subcommittee on Jan. 15, she said it would allow lawmakers to protect people who could not speak for themselves. Also testifying was a man who became a guardianship reform advocate after a 4 1/2 year battle to get his mother’s guardian removed. The guardian was being paid $30,000 per month and was put in place despite the fact that his mother had set up a trust and prepared paperwork that appointed family members to manage her financial matters and her health care.

The man said the bill would help but was still not enough. In his situation, a judge finally determined that the guardian was not in his mother’s best interest, and she was able to spend the final weeks of her life with her son.

Many people do make arrangement for guardianships as part of their estate plan, and this bill should strengthen them. However, there may be other situations in which an individual becomes incapacitated and there is no paperwork in place. When this happens, family members may want to consult an attorney about guardianships and conservatorships. In some cases, a family may be divided about who should be appointed. The attorney may be able to help clients prepare a strategy in this situation.

If an adult makes a decision while of sound mind, the law provides little recourse for that person even if he or she were pressured to make it. In some states, undue influence may occur if a person is vulnerable because of his or her age or declining cognitive function. It can also occur if a victim is pressured to make a decision by someone who has a level of authority. This could include a trustee, a family member or anyone else managing that person’s affairs.

Finally, undue influence could occur if an individual experiences a significant financial loss because of his or her actions. Implementing a standard definition for undue influence nationwide may become more important as time passes. By 2030, roughly 19% of Americans are going to be 65 or older. In 2000, only 12.4% fell in this category.

If an individual is deemed to be vulnerable to undue influence, family members may ask that a guardian manage his or her affairs. One could also appoint a guardian as part of an estate plan. Legal counsel could explain the benefits of having a guardian or conservator manage an elderly person’s affairs. An attorney may also help a family remove a guardian or conservator who is acting in a negligent manner.

While most people think they need to pick one guardian — essentially, a person to take over their own role in the family — this is not actually the case. You can pick multiple guardians. Is that something you want to do?

The upside, of course, is that you can spread out the potential obligations. Say you want to choose your brother, who has three children of his own. Do you really want to suddenly give him a family with eight children? Is that affordable? Is it realistic? For many families, it isn’t. Picking a different person to act as the guardian for each child keeps things manageable. People who may not have agreed to be the guardian for all of your children may agree to care for one.

The downside, though, is that this splits up the siblings during what is already sure to be an emotionally difficult time. Do you really want them to live apart? What if your guardians live in different cities or even different states? Is splitting the children up going to ruin their relationships with each other, and how does that influence your decision?

There’s no strict right or wrong answer here. You just need to understand all of the options you have so that you can do what is right for your family.

Voluntary guardianships are often established by an adult over another person of a similar age. The ward may request to be appointed a guardian to help them manage their estate if they feel like it might be in their best interest not to do so on their own.

Florida Guardianship Statute Chapter 744 outlines how an involuntary guardianship may be set up in two instances. It may be done to transfer an adult’s rights over a child to another. A guardian may also be appointed in if an individual is determined to be incapable of handling their affairs as well. An adjudication hearing must take place for an individual to be appointed as a guardian in the latter case.

Individuals who are appointed guardians retain certain basic civil rights including the right to pursue an education, to be protected from abuse and to receive necessary rehabilitation and care. They have a right to an attorney and to be treated with respect. A ward can petition a judge to end a guardianship at any time.

A judge presiding over these types of cases doesn’t just take a petitioner’s words at face value and assign someone a guardian. They will instead want to be presented with proof for why they should appoint or remove an individual’s guardian. If they’re not provided with such evidence, then it’s likely that such a request will be denied.

If you’re looking to make a strong case for why you should be appointed as guardian over someone else, then should consult with a guardianships & conservatorships attorney. They can review your evidence to see whether you have a strong case for being appointed to this role here in Florida.

There may be several signs that your parents need someone else to make decisions for them. One of your parents might not recognize fraud when he or she gets emails or letters asking for money. Your parents might also be too heavily influenced by someone else to their detriment. Sometimes your mother or father may forget about appointments and bills or lose money. Additionally, if one of your parents cannot make rational choices about healthcare or money, it may be time to appoint a guardian.

Once you know your parents need a guardian, you have to decide who should perform this job. Caring.com says that a guardian makes important decisions about healthcare, finances and other matters for a senior. This role comes with a lot of responsibility, so it is important to choose the right person. Sometimes you may think you are the best person to do this job, and if you are an only child, you may be the only one who can provide this care for your parents. If you have siblings, however, it is a good idea to consult them.

When you and your siblings choose who should serve as your parent’s guardian, it is important to go over the job duties. A guardian typically has to keep detailed records about a senior’s health and finances. If your mother or father has a pension or other benefits, the person who serves as the guardian generally has to fill out all of this paperwork. It may be a good idea to pick someone who is comfortable taking care of these administrative tasks. Additionally, it may be best if a sibling who lives close to your parents serves as the guardian. You can find more information about this subject on our webpage.

Because every conservatee’s situation is unique, there are several different types of conservatorships available. Before you seek a conservatorship for a family member from the court, it may be helpful to understand how each type differs from the others. 

According to First Republic Investment Management, there is a difference between a conservator of the estate and a conservator of the person. The former’s responsibilities relate primarily, and almost solely, to managing the conservatee’s financial affairs. On the other hand, the role of a conservator of the person is to provide for the conservatee’s daily care. To that end, the conservator may have access to confidential documents like medical records and have permission to open and read the conservatee’s mail. Decisions as to where the conservatee lives or whom he or she sees socially may fall to the conservator of the person. 

When required, the court may appoint one person to serve as conservator of the person and another as a conservator of the estate. However, it is also an option to appoint one person to serve in both capacities at the same time. 

The information in this article is not intended as legal advice but provided for educational purposes only.