Ask The Lawyer: Guardianship Question
Posted Jan 25, 2021 6:48PM EST
QUESTION
This is a subject that disturbs me greatly. I don't expect a specific answer but point me in the right direction for research. It is well accepted that elderly gay men are usually well off financially. Please warn others here to be aware of "guardianship". If they have placed their assets in a revocable trust and become a ward of the state a successor trustee can control the assets and (where do the proceeds go) if one has a partner the partner is pushed aside. I offer Netflix docuseries "Dirty Money" as proof. The two men featured lost millions. My single friend had Parkinson’s and was worth 1.2 million. He came under control of a guardian because of his disease. He died Jan 2019. What happened to $1.2 million. I live in Florida.
ANSWER
Thank you for your question. It is certainly an important one, especially in light of hospitalizations of people as a result of Covid-19.
It sounds as if your friend needed a guardian due to his physical health. A guardian is a surrogate decision-maker appointed by a court to make either personal and/or financial decisions on behalf of a minor or an adult with mental or physical disabilities. Following a court proceeding during which the court determines whether the subject is in need of a guardian, the subject is termed a “ward.” The guardianship proceeding is an “adversarial” court proceeding because people otherwise have a legal right to manage their own affairs and is only warranted when there is no less restrictive alternative, such as a durable power of attorney, trust, health care surrogate or proxy, or other pre-need directive.There are two kinds of guardianship — a limited adult guardianship and a plenary adult guardianship. Limited guardianship is appropriate when the court finds the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to care for the ward’s person or property, especially if he or she does not have pre-planned, written instructions for all aspects of life. A plenary guardian is a court-appointed individual who is given the legal power to exercise all the delegable legal rights and powers of an adult ward who is unable to care for themselves.
In the United States, guardianships are initiated in a state court (usually probate court) by filing a petition to determine incapacity. The petition is filed in the state county where the proposed ward is located at the time the petition is filed. Not everyone can be appointed a guardian; in general, only someone who is at least 18 years of age and is an adopted child or adoptive parent of the proposed ward, or a spouse, sibling, aunt, uncle, niece or nephew, or otherwise related by blood, marriage, or adoption. Nor can a person be appointed if they have been convicted of a felony or other offense, and who is incapable for a variety of reasons of discharging the duties of a guardian. In other words, the proposed guardian must demonstrate to the court that they are a suitable guardian. Another restriction is on health care providers who are providing services to the proposed ward unless they can satisfy the court that there is no conflict of interest. Thus, a nursing home, for example, can’t seek guardianship over a resident. Prior to appointment, the courts will require the proposed guardian to undergo a credit and a criminal background check. Where there is no suitable relative, the court may appoint a guardian from a list of professional guardians, all of whom undergo a credit and criminal back ground check (including fingerprints). All guardians must complete a certain amount of guardian education about their duties and responsibilities, including preparation of reports they are required to submit to the court. Expenses incurred by the guardian on behalf of the ward, including the education costs, can be reimbursed from the ward’s estate, but must be submitted to the court for approval.
Upon appointment, the guardian must file an initial guardianship report and plan, usually within 60 days, including a verified inventory of the ward’s property. At least annually, or upon filing of a petition for an interim review, the guardian is required to submit a guardianship report to the court, which retains jurisdiction over the guardianship. Although the guardianship reports are confidential, any interested party may petition for an interim judicial review. However, if this petition is meritless, the petitioner may be found liable for costs and attorney’s fees.
Costs of the guardianship proceeding (such as filling fees, attorney fees, and professional evaluation fees), may be awarded by the court upon approval of a submission and the fees will be paid out of the ward’s property.
Even though the court removes the adult ward’s rights to manage his or her own affairs, the court has a duty to protect the ward. Thus, all guardianships, whether of an adult or a minor, are subject to oversight by the court. In addition, before exercising authority as the guardian of the estate of the ward, the guardian is required to obtain a bond, in an amount set by the court. This bond can be waived if compelling reasons are presented to the court but, in general, the bond is a requirement since it guarantees the faithful performance of the guardian’s duties.
There are several things that can be done in the case of this friend. First, his blood relatives (a sibling, parent, child, etc.) or an interested party (such as a close friend) can petition the court for good reason to demand an interim report. The court will review the interim report and, can discharge the guardian if his or her actions were inappropriate.
The Florida Statutes governing guardianship are at Title XLIII, Chapter 744. You can find them by following this link.
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/0744ContentsIndex.html
Stephen welcomes your questions about legal issues related to older gay men. Please read his bio and disclaimer and contact him through the form at the bottom of it if you have a question for him.