Voluntary Guardianship and Asset Protection
Written by Ashley K. Roof, Esq.
Florida statute allows an individual concerned about financial exploitation to seek out what is termed a “Voluntary Guardianship.” Unlike an involuntary guardianship, a voluntary guardianship occurs without a finding of incapacity, and upon the petition of the person seeking a guardianship for himself or herself.
A voluntary guardianship occurs when a mentally competent adult is incapable of caring for their own assets due to age or physical infirmity. Unfortunately, voluntary guardianships usually occur as a result of financial exploitation by person in a position of trust, such as a family member, close friend, or agent under a Durable Power of Attorney.
In a voluntary guardianship, the guardian’s authority is limited to the financial affairs of the property over which they have control. The guardian cannot make medical or residential decision for the elder.
The person requesting a voluntary guardianship for himself or herself may petition the court for a guardian of some or all of their property. Along with the petition, the petitioner must submit documentation from a physician certifying that the petitioner, the person requesting the guardianship over himself or herself, has been examined and the he or she is competent to understand the nature of the rights they are giving up through the guardianship petition. Once the guardianship is ordered, the guardian that the elder chooses begins to manage the assets with court oversight.
Once a guardian has been appointed, they will be required to file an annual accounting of all the property over which they have control. Along with this accounting, the guardian is required to submit documentation from a physician certifying the elder’s continued competency to understand the guardianship and the rights they are giving up.
A voluntary guardianship terminates upon the death or incapacity of the Ward, or upon the elder’s filing of a termination of the voluntary guardianship.
The primary benefit of a voluntary guardianship over a Durable Power of Attorney is court oversight and involvement. Unfortunately, an agent named in a Durable Power of Attorney may abuse those powers resulting in misappropriation of assets. Once the voluntary guardianship is established, the court will ensure the elder’s assets are used only for the benefit of the elder, whereas a Durable Power of Attorney does provide for court oversight.
The Elder Law Center of Kirson & Fuller is experienced in not only assisting with the voluntary guardianship process, but also advising on the best course of action to ensure any financial exploitation is halted. If you are considering a voluntary guardianship, or are concerned about financial exploitation, please ensure you contact an experienced elder law attorney.