Navigating the legal guardianship process

Guardians can protect vulnerable people from exploitation while ensuring that their assets are protected and that they receive the care and services they need.

This is the first in a three-part series that explains the process of legal guardianship. Lynda Gurvitz has testified as an expert witness in a number of guardianship hearings.

The case of Terri Schiavo demonstrates the gravity of the role of a person appointed as a guardian. Not all guardians make life or death decisions for their wards, but every decision can affect the quality of life. It is important to consider the facts before making such a decision.

What to do about your recently widowed mother who got lost driving home from the store?

How about the man with Alzheimer's disease, living in a nursing home, who has been diagnosed with prostate cancer but is too confused to make decisions about medical treatment?

And what can be done about the neighbor who bought $2,000 worth of magazines instead of blood pressure medications because she's convinced she has won a sweepstakes contest?

The answer to all of these scenarios may be with a legal guardianship.

According to Linda Lee, deputy director of the Pinellas County clerks office, 2,400 individual pursued this alternative in 2002. Once the guardianship system is in place, it is designed to protect vulnerable individuals from exploitation and ensure that their assets are protected and that they receive the care and services they need.

Here are questions and answers regarding the guardianship process.

Question: What is a guardianship?

Answer: Guardianship is a legal procedure in which the probate division of the circuit court determines that an individual is incapable of making financial or personal decisions on his or her own behalf due to a mental or physical disability. If an individual is declared incapacitated, then that person is made a ward of the court.

Q: Who decides if an individual is incapacitated and needs a guardian?

A: The decision is up to a judge or hearing master assigned to the circuit court. The decision is made during a formal hearing attended by the potential ward, the person requesting the guardianship (called the petitioner) and the proposed guardian. Legal counsel represents each of these individuals.

During the hearing, the judge is presented with information about the potential ward. This information may include medical records and sworn testimony of neighbors, friends, case workers or other individuals who have relevant information.

Every potential ward is evaluated by an examining committee of three experts that must include a physician, a psychologist and another health care professional such as a nurse, social worker, licensed mental health counselor or gerontologist.

The members of the examining committee must independently evaluate the physical, mental and functional abilities of the potential ward. Once this is done, they must submit a report and make a recommendation to the court regarding the potential ward's ability to exercise certain legal rights. The judge is not obligated to follow the recommendations, but their opinions usually are given considerable weight.

Q: What does a guardian do?

A: A guardian can make legal, financial, personal and medical decisions on behalf of the ward.

A guardian can be appointed to oversee the financial or personal aspects of the ward. A guardian also can manage property, pay bills and oversee contractual arrangements or legal matters that affect the ward's monetary status.

The guardian can oversee medical decisions, living arrangements and other aspects of the ward's social environment.

A ward also can be appointed separate guardians for personal and property matters; or, a single guardian can serve both functions.

Q: Why is a guardianship a legal matter that requires that an attorney represent the potential ward?

A: For a guardian to be appointed, the potential ward must be declared (or adjudicated) incapable of exercising one or more civil rights related to managing their personal or financial affairs.

To be adjudicated incapacitated is a very serious matter. The court can remove any or all of the following civil rights: the right to vote, to marry, to have a driver's license, to travel, to look for or keep a job, to decide where to live, to apply for government benefits, to enter into a contract, to sue and defend a lawsuit, to manage or make decisions regarding finances, to consent to medical treatment and to make decisions about friends and social activities.

The ward has the right to choose to be represented by an attorney appointed by the court or an attorney of their choice.

The adversary process is intended to ensure that the potential ward's rights are protected and that the competent individual does not lose his or her rights.

Q: How does the guardianship process get started?

A: First, a petition is filed with the probate court. The petition requests that the court determine the competence of the ward to exercise their civil rights and that a particular individual is appointed as guardian.

A petitioner can be anyone but usually is a family member, bank trust officer, nursing home social worker, potential guardian or concerned neighbor. An attorney must file the paperwork. The petitioner and the potential guardian do not have to be the same person.

Q: What if there is an emergency situation and the potential ward may come to harm before the process can be completed?

A: In the case of imminent harm to the ward, an emergency hearing can be scheduled in a matter of days. If the judge is convinced that the potential ward is in imminent jeopardy, an emergency, temporary guardian can be appointed with limited responsibilities to address the crisis. However, the ward must still be evaluated and all other procedures followed in order for the ward to be adjudicated as incapacitated and a guardian appointed on a permanent basis.

Q: What does it cost?

A: That depends on the ward's assets and how complicated or prolonged the process becomes.

These fees are paid out of the ward's assets. In the case of indigent individuals, the county pays the fees. In a contested guardianship in which private attorneys and expert witnesses may be involved, fees can go into the thousands.

Q: Are there any alternatives to guardianship?

A: Yes. If a person realizes that he or she needs help with finances but is still competent to make decisions, he or she can enter into a voluntary guardianship.

Other alternatives are to appoint a health care surrogate, someone to make medical decisions in the event of future incapacity, as well as a durable power of attorney to make decisions regarding finances. The court is required by law to ensure that "the least restrictive environment" protects the ward. This means that if there is a way to protect the ward and or his or her assets without removing rights, this is the course that must be taken.

Q: Once someone loses their rights due to incapacity, can these rights ever be restored?

A: Yes. Wards can request restoration of rights at any time by informing their guardian or writing a request to the court. The restoration process can also be initiated by the guardian in their annual report to the court or by the physician in the ward's annual physical. The examining committee can also recommend re-evaluation in six months if members think the ward's incapacity is temporary or can be remedied with medical treatment or rehabilitation.

Once a request for restoration has been initiated, the process begins again with the appointment of counsel for the ward, a hearing and so forth. The only difference is that only one examiner is appointed to evaluate the ward's capacity.

Q: Where can I get more information?

A: Anyone considering initiating a guardianship action should consult with an elder law attorney. Information about attorneys that specialize in issues related to the elderly, including guardianships, can be obtained from the National Academy of Elder Law Attorneys Web site at www.naela.com

For more information about guardianships, contact the Guardianship Association of Pinellas at 727 894-5060 or visit the Web site at www.guardian-association.com

- Lynda Gurvitz has a doctorate in psychology and has served since 1996 as a member of the examining committee for the probate division of the 6th Judicial Circuit Court, which oversees guardianships in Pinellas and Pasco counties.

Next month:

A guardian and ward's real-life story.

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