10 Common Mistakes Every Guardian Should Avoid—Part 1
Serving as guardian is an exceptionally important role. Guardians should be proud that the court saw fit to grant them such responsibility yet humbled with the weight of the duties they are undertaking.
There are two potential roles a guardian might fill: guardian of the property or guardian of the person. Each role has distinct responsibilities under the law. The court may appoint a single individual to serve in both capacities or may choose to appoint two different people, one as guardian of the person and another as guardian of the property and. The “ward” is the individual for whom a guardian has been appointed.
The chief duties of the guardian of the person of a ward are to make medical decisions on the ward’s behalf, determine the ward’s living arrangements to ensure the ward is safe and well-cared for and that unique needs of the ward are met. Guardians of the property of a ward are charged with collecting, managing, and safeguarding their ward’s property and assets for the benefit of the ward. In many cases, a single guardian may serve as guardian of both the person and property of the ward. However, if the guardian of the person and guardian of the property are two different individuals, they must consult and collaborate regularly to ensure the best care for the ward.
Guardians should approach their role with the goal of giving their ward the best life possible. If they keep this ideal in mind, they will faithfully serve their ward. Despite the best of intentions, there are a few common pitfalls that even the most well-intentioned guardians have difficulty avoiding. This short series explores—in no particular order—ten of the most common mistakes that guardians make.
1. Failing to Collect and Monitor the Ward’s Assets
As previously discussed, the chief duty of the guardian of the property is to collect, manage, and safeguard the ward’s assets—all of them. This requires the guardian to think beyond bank accounts and homes, which are readily apparent and straightforward to secure. Rather, the guardian must make a diligent search for all property owned by the ward, of any type or description, and the guardian should take steps to retrieve any property owned by the ward but which someone else may have possession of (a borrowed car, for example). Having the ward’s property out in the world without supervision can open the ward up to unnecessary liability, which should be avoided at all costs.
2. Failing to File Annual Reports on Time
Court supervision is essential to the guardianship system in Florida. Judicial oversight protects the ward, the guardian, and other interested parties. A key task of the guardian that enables this judicial oversight is the filing of annual reports on the status of the guardianship.
The guardian of the person is required to file an annual guardianship plan that lays out where the ward will reside, how the ward’s specific needs will be met, and what medical treatment the ward received during the previous year, among other things. This must be accompanied by a report from a physician stating that the physician completed an examination of the ward and that the condition which led to the ward’s incapacity still exists. This exam must be completed within a certain number of days of the filing of the annual plan, so guardians should consult their attorney when the time for filing the plan approaches.
While the guardian of the person’s annual plan looks forward to the coming year, the guardian of the property’s annual submission looks back on the previous year. The guardian of the property must file an annual accounting that accounts for all of the ward’s income for the relevant accounting period and notes the amount and purpose of all expenditures made on the ward’s behalf. The accountings must be accompanied by copies of statements for all bank accounts and other assets, so it is important that you provide copies of all statements throughout the year.
Generally, your attorney will generate drafts of these documents for you, so it is important that you keep them apprised of all non-routine expenditures and send copies of statements on a regular basis.
Though the court is generally willing to work with you, failure to file your annual reports in a timely manner may result in an Order to Show Cause (which requires the guardian to appear before the court and justify their lack of action), sanctions, removal as guardian, and other disciplinary actions from the court.
3. Failing to Maintain Detailed and Complete Records
A common thread among many of the mistakes set out here is a failure to maintain detailed and complete records. Complete records of income and expenses are critical to the completion of mandatory annual reports (as detailed above). Records are also important, however, when it comes to guardian fees. Guardians are generally entitled to reasonable fees for the services they perform on behalf of the ward. These fees are generally based on an hourly rate, so guardians should maintain a running timesheet of the tasks they do on the ward’s behalf, including the date, a description of the services rendered, and the amount of time spent on that task. Keeping an accurate timesheet can help greatly when petitioning the court for guardianship fees and reimbursement.
4. Co-Mingling Assets
The key duty of the guardian of the property is to collect and manage the ward’s assets. Many guardians have regular day jobs in addition to their responsibilities as guardian—unless they are a professional guardian, of course—so it can be tempting for guardians to try to streamline asset management by any means necessary. One common way to do this is to co-mingle the ward’s assets with the guardian’s own personal assets. Guardians often do this because it allows them to make fewer trip to the bank and consolidate all of the assets they manage (both the ward’s and their own) into a single view on online banking.
Co-Mingling assets makes it extremely difficult—nigh impossible—to properly account for the ward’s assets, which can amount to theft on the part of the guardian. Co-mingling guardianship assets with any other person’s assets is strictly prohibited. Guardians should be vigilant in ensuring that a clear, precise record of the ward’s assets is maintained.
5. Receiving Fees or Reimbursements Without Court Approval
Serving as guardian is a privilege, but it can often be demanding and time-consuming. For that reason, most guardians are entitled to compensation for time spent serving their ward. Guardians may also incur incidental expenses in connection with caring for their ward, such as the cost of gas to transport the ward to see a doctor whose office is an hour away. Guardians are entitled to reimbursement of these expenses from the ward’s assets.
The guardian cannot, however, pay or reimburse themselves for out of pocket expenses without permission from the court. Court approval of fees and reimbursement serves two main purposes. First and foremost, it protects the ward by ensuring that the fees paid to the guardian are reasonable and that the expenses for which the guardian is seeking reimbursement were actually for the benefit of the ward. Secondly, it protects the guardian by providing them an official court document authorizing the payments, which the guardian can produce to demonstrate to other interested parties—such as the ward’s family—that the fees and reimbursements were in fact reasonable and justified.
Guardians should always consult their attorney before paying themselves for fees and reimbursement, and should consider asking their attorney to petition for fees and expenses on a regular basis, at least annually.
Serving as a guardian is a role that can be very complicated and time-consuming, but if approached with the right attitude, one that can also be incredibly rewarding. The team at the Elder Law Firm of Clements & Wallace, PL, has decades of experience in guardianship and is prepared to help clients navigate the complex waters of serving as guardian. If you believe guardianship may be necessary for someone in your life, contact us for a consultation at (863) 687-2287 or online.
category: Guardianship & Incapacity