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  • What to Do If You Are Appointed Guardian of an Older Adult

    Being appointed guardian of a loved one is a serious responsibility. As guardian, you are in charge of your loved one’s well-being and you have a duty to act in his or her best interest.

    If an adult becomes mentally incapacitated and is incapable of making decisions for themselves, the court may appoint a substitute decision maker, often called a “guardian”, if the person has failed to execute valid estate planning documents that name someone to handle those decisions. Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”).

    If you have been appointed guardian, the following are things you need to know:

    • Read the court order. The court appoints the guardian and sets up your powers and duties. You can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state laws, you may need to seek court approval for various decisions before they are made for the ward. If you aren’t sure what you are allowed to do, consult with your attorney before taking any action.
    • Fiduciary duty. You have what’s called a “fiduciary duty” to your ward, which is an extremely high standard. You are legally required to act in the best interest of your ward at all times and manage your ward’s money and property carefully. With that in mind, it is imperative that you keep your finances separate from your ward’s finances. In addition, you should never use the ward’s money to give (or lend) money to someone else or for someone else’s benefit (or your own benefit) without prior approval of the court. Finally, as part of your fiduciary duty you must maintain good records of everything you receive or spend. Keep all your receipts and a detailed list of what the ward’s money was spent on.
    • File reports on time. The court order should specify what reports you are required to file. The first report is usually an inventory of the ward’s property. You then may have to file yearly accountings with the court detailing what you spent and received on behalf of the ward. Finally, after the ward dies or the guardianship ends, you will need to file a final accounting.
    • Consult the ward. As much as possible you should include the ward in your decision-making. Communicate what you are doing and try to determine what your ward would like done.
    • Don’t limit social interaction. Guardians should not limit a ward’s interaction with family and friends unless it would cause the ward substantial harm. Social interaction is usually beneficial to an individual’s well-being and sense of self-worth. If the ward has to move, try to keep the ward near loved ones. Moving a ward may also require court approval and should not be done without first consulting your attorney.

    For a detailed guide from the Consumer Financial Protection Bureau on being a guardian in Florida, click here.

    Our office represents both family guardians and professional guardians in Florida and provides guidance on how to properly manage and comply with the laws surrounding your role as guardian.

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