It is paramount that a person cultivates an estate plan which clearly sets out their preferences. This should often include a discussion with their trusted loved ones about how they want their interests represented if they become incapacitated.

By Peter A. Sachs and Melissa C. Steen

Florida’s guardianship framework is designed to respect and honor an individual’s documented wishes to the greatest extent possible. While a will cannot be contested until after death, disputes may arise during life concerning the welfare, safety, and assets of a vulnerable adult. Therefore, it is paramount that a person cultivates an estate plan which clearly sets out their preferences. This should often include a discussion with their trusted loved ones about how they want their interests represented if they become incapacitated.

Advance Directives Empower Individuals
An individual can become incapacitated at any point in his or her life, so a comprehensive estate plan should be established at one’s earliest convenience and include advance directives such as a durable power of attorney (DPOA), designation of health care surrogate (surrogate designation), and declaration of preneed guardian (preneed) that may be utilized upon incapacity.

A DPOA appoints an individual who will be responsible for making decisions regarding property, including real property, business interests, and financial assets. A surrogate designation appoints an individual to make decisions regarding medical care. One or more individuals may be designated to serve under these documents. If more than one individual is appointed, the document should specify whether decisions are made by majority vote or if an individual can veto a proposed plan. For example, under the surrogate document, one’s closest loved ones can be included as decision-makers or simply as people to be apprised of the client’s healthcare. Ultimately, these documents ensure there is an efficient procedure in place for decisions to be made and loved ones to be notified when appropriate.

How to Protect Your Assets
A revocable trust is a useful tool to limit the assets that become the subject of a guardianship because a guardianship court does not have jurisdiction over an alleged incapacitated person’s trust assets. A guardianship proceeding will entail consideration of trust assets, but the appointed guardian has no authority over the trustee of a revocable trust absent unusual circumstances. The creator of the revocable trust often serves as the sole initial trustee, allowing the creator, also known as a grantor, full authority and control of the trust assets. A successor trustee is named to serve upon the creator’s death or incapacity. If the revocable trust is funded prior to incapacity, the trust will provide that a successor trustee is to step in and take over the ongoing administration of the trust. In an emergency situation, this is an efficient way to have the successor step in to gain access to and take care of finances during a time of incapacity.

A DPOA, a surrogate designation, and preneed, along with a trust are lesser restrictive alternatives to guardianship. Under most circumstances, these documents will protect the incapacitated person’s assets and interests to the extent necessary to avoid the need for and appointment of a guardian. In most situations, it is preferred to operate through advance directives rather than a formal guardianship because with the latter, someone not preferred by the incapacitated person can be appointed as guardian, and often a guardianship involves more expense due to court oversight, filing requirements and legally imposed deadlines to keep the court updated on the incapacitated person’s health and property.

Your Choice in Representation Matters

In addition to establishing preference for the trusted individual(s) named in the advance directives, this preference should be communicated to the named individual(s) so that person can act if and when the principal’s capacity is challenged. If the client develops a trusted professional relationship with a law firm, Florida ethics rules allow the firm to continue a normal attorney-client relationship for as long as possible, including during an alleged incapacity. This could allow the firm to represent the client in a contested incapacity proceeding to argue that the alleged incapacitated person is not incapacitated, or if found to be incapacitated, is not plenary incapacitated and therefore should retain some rights. Further, the firm could seek to affirm the advance directives.

Key Considerations
• A comprehensive estate plan should be established early in a person’s life and will provide protection should a dispute arise.
• Advance directives provide a safeguard from an improper intrusion into an individual’s life. These documents carry significant weight in guardianship proceedings.
• Documented preference will support a determination that there is a lesser restrictive alternative to guardianship.

Florida guardianship law is structured to support action taken in the best interests of the alleged incapacitated person. Each situation is different, and options should be discussed to determine the appropriate plan. To facilitate this discussion, a clear and helpful path often begins with examining the alleged incapacitated person’s wishes.

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