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Does your parent need protection? Consider guardianship

If you were lucky enough to spend some quality time with your family over the holidays, you may have wondered how your parents or other elderly relatives are faring. It's not uncommon to notice changes in mobility or behavior, especially if weeks or months pass between your visits.

As our family members age, they become more vulnerable. Not just to illness or injury, but problems with finances and general decision making. They may be more prone to scams or influenced by people who don't have their best interests in mind.

One way to protect an elderly loved one at this stage of life is to establish guardianship. This is a legal process in which an individual or an institution is appointed by a court to care for someone who lacks the capacity to fully manage their own health, property or finances.

Is your loved one a good candidate for guardianship?

The word "incapacitated" may bring to mind someone who is completely helpless, but that's often not the case. There's a legal process for determining whether someone should have a guardian, beginning with a petition. You or another adult can file a petition with the court, which in turn appoints a committee (usually including two physicians and another professional) to evaluate the person's physical and mental health and functional capacity. An attorney is also appointed to represent the person -- known legally as the ward -- though a private attorney can be hired for this role. From there the court determines the level of incapacitation and if necessary, appoints a guardian.

What is the role of the guardian?

The guardian must inventory the ward's property and ensure that it supports the ward. Guardians must seek court approval for certain transactions and file annual reports with the court. They must also ensure the ward's residential and health needs are met. Every year the guardian is required to file a doctor's report and a detailed plan for the ward's continued care.

Who is eligible to be a guardian?

Any adult living in Florida can be a guardian, whether or not they are related to the person in need of protection. Certain relatives living out of state also qualify. Another option is to appoint a professional or public guardian, which can be helpful if you live out of state or don't feel confident in your ability to manage your loved one's affairs. It's worth noting that the court will consider the person's own wishes in this decision. But the court will not consider any party that may have a conflict of interest -- that is, someone with something to gain from the appointment.

If you think it may be time to consider guardianship for a loved one -- or to prepare for your own future need for a guardian -- an estate planning attorney is an ideal resource. Setting up a guardianship is more easily done with a legal professional's help and ensures that no steps or considerations are overlooked.

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