Joshua Ferraro: What You Need to Know About Conservatorships and Guardianships

Like many of you,‭ ‬I’ve seen the stories about Britney Spears over the last few months.‭ ‬Most of the focus lately has been on her controversial conservatorship.‭ ‬For‭ ‬13‭ ‬years,‭ ‬her father Jamie Spears has been in charge of her estate and essentially in charge of how the singer has lived her life.‭ ‬Her story has led to a documentary and social media outcry to‭ “‬Free Britney.‭”

When her family originally set up the conservatorship,‭ ‬they argued that the entertainer needed supervision given her mental state.‭ ‬They worried she would lose her large fortune by making poor decisions.‭ ‬In this situation,‭ ‬a conservatorship may have been the family’s best choice,‭ ‬even though Spears‭’ ‬court-ordered conservatorship is a bit unusual.‭ ‬Most‭ ‬39-year-olds don’t require a guardian to conduct their everyday lives.

As an attorney who handles intra-family disputes,‭ ‬I understand what a tough decision it is for a family member to step in and make decisions on behalf of someone they love.‭ ‬I’ve worked on these cases for years as a partner at the law firm Lesser,‭ ‬Lesser,‭ ‬Landy and Smith in Stuart.

In Florida,‭ ‬conservatorships are known as guardianships and are more commonly set up by the child of an elderly parent who may no longer be able to care for themselves.‭ ‬Because of our elderly population,‭ ‬Florida is ground zero for guardianships.‭

If considering this option for your family,‭ ‬there are some things you should know about the process.‭ ‬Also,‭ ‬these court orders can be really complicated,‭ ‬so it may not be for everyone.‭ ‬The good news is there’s an alternative to guardianships that can save you money in the long run.

Guardianships require a two-step process.‭ ‬The first step is to file a petition to determine incapacity.‭ ‬The second step is to file a petition for appointment of a guardian.‭

When filing a petition for incapacity,‭ ‬the judge has to determine if the person can take care of him or herself.‭ ‬Can he decide where he’s going to live‭? ‬Does she have the ability to take care of her property‭? ‬Can he make financial decisions for himself‭?

When the petition is filed,‭ ‬the court appoints an attorney for the prospective ward,‭ ‬who then reads the petition to the client.‭ ‬Next,‭ ‬what’s called an examine committee is created.‭ ‬This committee is made up of a physician,‭ ‬psychologist and a lay person.‭ ‬Each committee member meets separately with the prospective ward to go through a checklist that helps them determine if the person has the capacity to make decisions on his own.‭ ‬In the vast majority of the cases,‭ ‬the decision is unanimous.

Sometimes there is a question and that’s when attorneys like myself can challenge the decision.‭ ‬Sometimes,‭ ‬a person comes in and says my kids are trying to place a guardianship on me for financial reasons.‭ ‬Then we can object to the petition and ask the court to determine if the prospective ward is capable of caring for him or herself.‭

A prospective ward has the right to testify,‭ ‬present evidence,‭ ‬call witnesses and confront those testifying against her.‭ ‬However,‭ ‬the ward also has an absolute right to refuse to testify,‭ ‬a decision that cannot be penalized or held against her as the court renders its decision.‭ ‬Ultimately,‭ ‬the judge will make the final decision and is charged with choosing the least restrictive scenario necessary to protect the prospective ward.

When the ward is unable to do anything for himself,‭ ‬this leads to plenary guardianship.‭ ‬This is when the ward is determined to be completely incapacitated.‭ ‬The appointed‭ ‬guardian would then have complete authority over the person and the estate,‭ ‬with the ability to exercise all delegable legal rights and powers of the ward.

‭ ‬A number of factors are considered when choosing a guardian.‭ ‬For instance,‭ ‬if the person lives closer to the ward,‭ ‬rather than in another state,‭ ‬there might be a preference in choosing the closer person.‭ ‬Family versus a stranger‭ ‬can also be a factor.‭ ‬If someone does not agree with the court-appointed guardian,‭ ‬the decision can be contested.

When there is a co-guardian or a public guardian,‭ ‬a professional with no family ties,‭ ‬this is where you can sometimes run into trouble.‭ ‬Over the years there have been abuses in the guardianship program,‭ ‬including,‭ ‬guardians taking significant fees with little oversight or refusing to allow grown children to see an elderly parent so that they can maintain control.‭

Offenses like these led to a tightening of the rules,‭ ‬specifically when it comes to the reports guardians must deliver to the court.‭ ‬The first is the annual guardianship plan which includes where the ward is living and who is overseeing their care.‭ ‬The second is the accounting part which includes where the money is going.‭ ‬This part is very detailed and requires an accounting of every dollar spent from the ward’s funds.‭

An auditor with the clerk of courts combs through every expense.‭ ‬Then a judge decides whether or not to approve the accounting.‭ ‬Typically,‭ ‬no extraordinary expenses are allowed to be taken out without court approval.‭ ‬Attorney,‭ ‬accountant and guardian fees must be sent in writing and a hearing is held to explain them.‭ ‬All this in an effort to prevent fraud and abuse.

When tallying up the costs and dissecting the cumbersome process,‭ ‬it’s easy to see how guardianships might not work for everyone.‭ ‬None of us want to work our entire lives to spend all of our money on financial and attorney fees.‭ ‬There is a less,‭ ‬expensive alternative that can be included in an estate plan.‭

Entering into a revocable trust is less expensive and maybe a better choice for some people.‭ ‬A revocable trust allows an individual to appoint a trustee to manage her property privately without the need for expensive annual accountings and the costs associated with court supervision.‭ ‬At the same time,‭ ‬individuals can appoint a power of attorney and/or a healthcare surrogate to make decisions regarding their care,‭ ‬and lifestyle in the event of a future disability.‭ ‬Each of these planning tools can be accomplished for a relatively low price while presenting significant savings down the road.‭ ‬Further,‭ ‬this allows someone to maintain a level of control over their life while obtaining many of the same protections that a guardianship proceeding would provide.‭

These are some of the things you should know if you find yourself in this situation.‭ ‬Having a family member or trusted friend in charge of your estate‭ ‬may provide a sense of security and the peace of mind you need in later years.

Joshua‭ ‬Ferraro is an attorney with Lesser,‭ ‬Lesser,‭ ‬Landy‭ & ‬Smith,‭ ‬PLLC,‭ (‬LLL&S‭),‬ one of Florida’s oldest law firms.‭ ‬In addition to the litigation of traditional personal injury cases and intra-family disputes,‭ ‬Josh is the head of the firm’s Maritime‭ and ‬Cruise Ship Injury division representing passengers and crew members who have been injured on vacation or at sea.

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