Estate planning: A guide to avoiding the terrors of the guardianship system | Opinion

After writing an overview of Florida’s Guardianship laws, I was overcome with emails asking what measures can be taken to ensure one doesn’t fall victim to an inescapable situation.

First and foremost, be proactive! Proper estate planning is key.

A misconception frequently occurs with what estate planning actually is. I’ve encountered people who believe such a concept is only for those in the top of our tax brackets or for those with assets to leave to their loved ones.

Nothing could be further from the truth. Estate planning documents are not just for a group of elite individuals, they are for everyone — and they include much more than just a will.

Proper estate planning documents can include: 

• A will: a document that in essence is the instruction manual expressing your wishes after death.
   
• A living will: a document setting forth your desired medical treatment if a situation occurs where you may not be able to give express informed consent.
   
• Financial durable power of attorney: a designation selecting a person of your choosing whom you have given the power to make decisions pertaining to your finances and other non-health care choices.
   
• Health care power of attorney: a designation of a person of your choosing whom you have given the power to make decisions regarding your health care if a situation arise where you are no longer able to do so.
   
• Preneed guardian: a designation of a person to serve as guardian of your person and/or property if you are determined to be legally incapacitated.

The way to avoid a professional guardianship situation is to designate a preneed guardian. Designating a trusted person for a time when you are most vulnerable is critical to navigating this complex and often confusing system.

Even with proper estate planning, Florida’s Guardianship system is in dire need of reform. Proactivity is the first step in avoiding the grips of a system designed for the benefit of everyone other than the true person in need — however, it is not the end.

The next step has to come through advocating for legislative reform and working with all parties involved — the ward, the professional guardians, and the associated attorneys — to remedy a situation that we all know is less than ideal.

Florida law allows a guardian or an attorney to receive fees from the ward’s assets even for going against the ward’s own desires (i.e., fighting against the termination of a guardianship). So long as the guardian or attorney justifies the fees as acting in the best interests of the ward, he fees can be taken from the ward’s assets.

Ultimately, the system has created a business for professional guardians and associated attorneys. Instead of protecting the interests of a ward, Florida law allows for a cash cow to exist at the expense of those truly in need.

At this point, further guidance and oversight is needed to ensure that those who find themselves in need don’t fall victim to abuses of this ever-growing business in Florida.

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Estate planning: A guide to avoiding the terrors of the guardianship system | Opinion