This is the second in a short series on common mistakes made by guardians. For the complete list, be sure to check out Part 1.
6. Taking Action Without Consulting Their Attorney
While the court places the guardian in control of the ward’s person or property (or both), the court never relinquishes oversight of the guardianship. To protect the ward, the guardian, and the interests of third parties, Florida law sets forth specific acts which may only be undertaken by the guardian with prior approval from the court, such as the payment of guardian fees and expenses (as discussed in Part 1). In order to protect their own interests and the interests of the ward, guardians should always consult their attorney before taking any nonroutine action on behalf of the ward to ensure that court approval will not be required. It’s one of the main reasons that all guardians in Florida are required to be represented by an attorney at all times.
7. Moving the Ward Out of County Without Court Permission
We have already explored a few common guardian actions that require court approval (noticing a trend yet?). One such act is moving the ward out of the county of their current residence. This is particularly important because moving the ward to another county may change which court oversees the guardianship. For example, moving the ward from Polk County, Florida to Pinellas County, Florida will require transferring venue of the guardianship from the Polk Probate Court to the Pinellas Probate court.
One exception to this rule is when a guardian relocates the ward to a neighboring county directly adjacent to the one of the ward’s current residence (e.g. Polk to Hillsborough). However, even if court approval is not required, the guardian is still required to let the court know that the move will take place and the “compelling reasons” for the move, F.S. 744.1098(2). A guardian that seeks to change their ward’s residence—no matter where they plan to move the ward to—should always consult their attorney before doing so.
8. Contracting for the Ward Without Court Approval
The vast majority of us enter into contract on a fairly regular basis. Cell phone plans, cable and internet services, purchasing, leasing or selling vehicles, rental agreements, selling or purchasing real property, repairs to the ward’s home, scheduling a vacation, and lawn maintenance and pest control agreements all involve contracts that may require court approval if sought to be entered into on the ward’s behalf.
Contracts like these require court approval for three main reasons. Prior approval protects the ward by ensuring that the guardian does not make unreasonable or frivolous agreements that directly affect the ward or the ward’s property. The guardian is protected by having a neutral party confirm that the agreement is reasonable. The other party to the contract also benefits, because they attain assurance that they can reasonably rely on the guardian to fulfill the contract.
Whenever a guardian considers or negotiates an agreement on behalf of the ward, the guardian should be very careful to make it clear to all parties upfront that the contract is contingent on approval by the probate court. If possible, court approval should be a written term of the agreement.
9. Failing to Understand Which Rights Are Retained by the Ward
Though they are managed by a common set of guidelines and rules, every guardianship is unique, because every ward is unique. Thus, it is critical for guardians to understand which rights are retained by the ward and which have been delegated to the guardian.
Traditional guardianships are established when the court enters and Order Determining Incapacity and Order Appointing Guardian of the Person or Property (or both). These orders will set forth which rights are retained by the ward and which are delegated to the guardian.
The law makes a distinction between “delegable” and “non-delegable” rights. Delegable rights are those which may be removed from an individual and granted to their guardian, such as the right to contract, determine place of residence, and make medical decisions. Non-delegable rights are those rights that, if removed, do not pass to the guardian, such as the right to vote, the right to marry, travel, and seek and retain employment.
In some cases, the court may remove only those specific rights which the ward is incapable of performing, leaving the ward with all other delegable and non-delegable rights under law. This is referred to as a limited guardianship. A limited guardian is appointed to exercise only those specific rights set forth by the court, leaving the ward to make all other decisions and exercise all other rights on their own.
While many guardianships give all delegable rights to the guardian, it is not uncommon for the ward to retain some nondelegable rights, such as the right to vote or right to have a driver’s license and operate a motor vehicle. It is important to note that not all rights of the ward may be delegated to the guardian, such as the right to vote, and that the ward always retains certain rights even after being declared incapacitated, such as the right to review the annual guardianship report and the right to be restored to capacity as soon as possible.
The goal of guardianship is to protect the ward while allowing the ward to live a life with the greatest autonomy and independence possible. To do this, a guardian must respect the rights that the court has specifically left to the ward and consistently monitor the ward and alert the court if the guardian believes some or all of the ward’s rights should be restored. Guardians should consult with their attorney to understand which rights the ward may continue to exercise and which the guardian must exercise on their behalf.
10. Failing to Routinely Reevaluate the Ward’s Living Situation
The guardian of the person is charged with making medical decisions for the ward and determining the ward’s living situation. As stated above, the goal of guardianship is to make sure the ward is safe and their needs are met, while at the same time trying to grant the ward the greatest level of autonomy and independence possible. To achieve that goal, the guardian must consistently reevaluate the ward’s living situation in order to determine whether more (or less) independence is in the ward’s best interests. In evaluating a ward’s living situation, the law requires that the guardian consider whether the ward’s current placement is the “least restrictive alternative” that provides for the ward’s needs while helping them to maintain their independence.
For example, if a ward no longer requires the full-time services of a skilled nursing facility, placement in a less-restrictive assisted living facility may be a better choice for the ward. On the other hand, if a ward is living at home and not receiving the care or help they need, the least-restrictive alternative may be an in-home caregiver that provides personal care services a few days per week.
To consider the least-restrictive alternative, the guardian must maintain consistent contact with the ward so they can constantly evaluate the ward’s changing needs.
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