Guardianships...the Good, the Bad, and the (sometimes) Ugly


According to some reports, 10,000 baby boomers retire each day and begin receiving Medicare and Social Security benefits. The numbers are daunting. As the boomer generation moves into old age, the number of people affected by guardianship is also rising. So too is the abuse.


Just what is guardianship?

It’s a legal proceeding in which a guardian is appointed to exercise the rights of an incapacitated person. The principal is altruistic: make sure that someone who cannot take care of him or herself has another person or institution to watch over them. But in practice abuse is rampant.

Take the story of a 67-year-old Florida man who suffered a major stroke resulting in hospitalization. The hospital petitioned to make him a ward and appointed a professional guardian. The professional guardian sent him to a distant rehabilitation facility and sold assets to pay herself an average of over $1800 per month. It took his ex-wife (who had medical power of attorney) nine months, thousands of dollars, and two attorneys to make herself her ex-husband’s guardian. (Herald Tribune).

Similar stories are repeated all over the country. Many states are trying to change. For instance, in 2015 Florida overhauled its elder guardianship system. The new law provides for criminal penalties for abuse or exploitation of a ward, calls for more notice for emergency temporary guardianship proceedings, and makes it harder to suspend a family member’s power of attorney during the litigation process.

Florida’s “new” elder guardianship statute was the focus of a recent seminar held in The Villages, Florida for attorneys and professionals involved in the guardianship process. Florida is also piloting a program called Eldercaring Coordination, which is a dispute resolution process designed to reduce conflict and the court’s involvement in elder care so that the elder and family members can focus on the needs and safety of the elder. The Eldercare Coordinators have varied professional backgrounds, including legal, social work, mediation, psychology, geriatric care.  Their primary responsibility is to the elder, but they also work with family members and professionals in implementing a care plan.

The best way to avoid guardianship and possible abuse is to plan ahead.

Here are some steps you can take:

  • Create a durable power of attorney. This is a document in which you name a person or persons to handle your finances if you cannot. In Florida, a valid durable power of attorney is not suspended automatically if the agent is a “relative agent” defined as a parent, child or grandchild of the principal.
  • Create a health care directive or healthcare power of attorney. This is a document which designates an individual who may make medical decisions for an individual if that individual can’t make them on their own. The agent or surrogate can obtain medical records, talk to doctors about your condition, and make medical decisions.
  • Designate a Pre-need Guardian. Incapacitation is never predictable. However, designating a pre-need guardian is. With this simple document, a competent individual may designate an individual to serve as guardian in the event they become incapacitated.  
  • Living Will. This is a directive to medical professionals that the individual does not want to undergo care or procedures that will prolong life if there is an end stage condition. (Note: living wills are not the same thing as a “Do Not Resuscitate” or DNR, which requires a form to be filled out by you and your physician.)

If you would like to arrange a Power of Attorney, Healthcare Directive, or other estate planning document, contact the Law Office of Catherine J. Merrill