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Frequently Asked Questions

What is a guardian? - Top of Page

A guardian is a person appointed by a probate court who is given the power and responsibility to make certain decisions about the care or property of another individual. A guardian of the person makes the decisions of another individual. A guardian of the property makes decisions about another individual's property. One person can serve as guardian of the person and property of an individual.

  1. A Petition is filed in probate court by a person interested in an individual's welfare to determine mental incapacity and appoint a guardian, if necessary.
  2. The Proposed Guardian must file an application with the court to become the guardian.
  3. The Court orders an examination of the individual by an examining committee.
  4. The Court appoints an attorney to represent the individual.

In an emergency, interested parties need not receive notice, but the court appointed attorney should receive notice. The individual still receives notice and a hearing is held. If an emergency petition is granted, the court appoints a temporary guardian.

An emergency is a serious crisis for the individual. An example would be when a health care decision must be made in a life or death situation. It is not an emergency when a hospital wishes to transfer an individual to a nursing home.

A legally incapacitated individual is an adult who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other causes to the extent that he or she lacks sufficient understanding or capacity to make or communicate informed decisions.

  • Visiting the individual
  • Determine whether there are alternatives to guardianship.
  • Explaining to the individual the nature of guardianship and the individual's rights in the process
  • Determining whether the individual wishes to be present at the hearing or contest the proceedings
  • Report back to the court whether the individual wishes to contest the proceedings; if not, representing the individual in accordance with his or her desires.

Letters of guardianship serve as proof of your authority to act for the individual and set forth any limits to your power. You should obtain a certified copy of the letters of guardianship from your attorney or the probate division's clerk of court. Read it carefully. It will note any limitations on your powers.

In any number of situations; for example, if you set up a bank account, the bank will need a copy of your letters. If you are to make a medical treatment decision, the doctor or hospital will want to see a copy.

No. A guardian upon whom the court grants fewer than total powers of a guardian is known as a limited guardian.

A guardian is responsible for the individual's care, custody, and control of his or her property.

Unless limited by the court order, a guardian has the responsibility to:
  • Determine where the individual lives.
  • Make provisions for his or her care and comfort including food, clothing and shelter.
  • Return the individual to self-management, if and when possible.
  • Authorize or refuse medical treatment.
  • Take care of clothing, furniture, vehicles and other belongings.
  • Receive money due the individual and use it for his or her needs.

A guardian of the property is a person or financial institution appointed by the probate court to handle an individual's property and financial affairs.

Sometimes the same person serves as both guardian of the person and property of an individual.

Once appointed, a guardian of the property manages the individual's assets. A guardianship can be limited by the court in such a way that the individual continues to control part of his or her property.

Yes. A guardian should be guided by the known wishes, likes and preferences of an individual, expressed before the guardianship was established. A guardian should consider the preferences of the individual currently expressed, assuming that the individual is capable of rationally expressing preferences given his or condition.

If an individual can understand a major decision is to be made, a guardian must confer with him or her before acting. Whenever possible, the individual should be presented with choices. There are important aspects of independence and dignity.

  • Cast the individual's ballot in an election.
  • Determine his or her religious preference.
  • Write a will or trust for the individual, with limited exceptions and with court approval.
  • Physically punish him or her.

If an individual has been determined to be totally incapacitated, he or she is generally not capable of making a Will or Trust. Attempting to make or change a testamentary document during a plenary guardianship is not advisable and should only be done with court approval.

A guardian of the property has the right to read an existing will.

No, unless the Court has determined that the individual is capable of voting.

A guardian may not vote for the individual.

Not if the right to have a driver's license is removed.

If the individual moves, whether by his or her choice or by yours, you have an obligation to inform your attorney who then informs the court within 15 days of the move.

You also have an obligation if you move to inform your attorney so the court is aware of your new address and telephone number.

As a guardian the property, you control the monthly income of the individual and the money in his or her bank account.

You owe the individual what is known as a fiduciary duty, one of care, confidence and trust. You must be very careful.

You must not commingle the individual's money with your own. You cannot use the money for your own needs, including a loan. You should not buy anything from, or sell anything to, the individual without prior court approval.

Each year, you must account to the court for all money received and all money spent. You must keep complete and accurate records.

  1. First pay for present needs of the individual.
  2. If there are sufficient funds to pay for present needs, satisfy past debts.
  3. Conserve excess funds for future use.

Do not pay a bill if you question its validity. Seek guidance from your attorney.

Yes, if possible. A person who no longer has control of his or her money may feel others are stealing or otherwise misusing it. You should try to alleviate those fears.

The court will require that all funds be placed in a restricted depository at the bank and the funds will not be released without a court order. You are not required to use the same bank and your attorney can assist you in selecting a bank that handles restricted depository accounts.

Make sure that funds from existing accounts of the individual are transferred into the restricted guardianship account.

Notify the Social Security Administration of any change in the bank and account number. Ask the bank for the necessary form to make this change.

Investigate how the account was funded and consult with your attorney as to whether all or part of the funds can be used in the guardianship.

Consult your attorney about a budget and obtain court approval for payment of bills and other expenses. The monthly bank statements and canceled checks provide a convenient record of income and expenses. If you pay cash, make sure you get and keep a receipt.

Yes. It is best to keep a log showing the date and amount of all income received, and the date and amount of all income received, and purpose of all expended, particularly those paid in cash. At the end of each month, total the expenses in categories, such as:
  • Food
  • Clothing
  • Health and dental care
  • Shelter, including utility bills
  • Insurance, e.g., health, life, homeowners
  • Other
Keep all bills, receipts, income statements and insurance reimbursement records, and store them separately from your own papers.

Apply at nearest social Security office to become representative payee. Bring a certified copy of your letters of guardianship.

Through the Veterans Administration, a person can become custodian of pension or disability funds of an individual.

Apply at nearest social Security office to become representative payee. Bring a certified copy of your letters of guardianship.

Visit the individual and try to explain your function. Ask the individual what you can do to help them or her. Observe living conditions. Talk with staff. Determine what you must do to meet the immediate needs for the individual for clothing, food, shelter and health care.

Generally it isn't your responsibility to provide services, but to arrange for services available in the community.

  • Health and dental care
  • Personal care, including feeding, bathing, dressing, housing, including housekeeping, maintenance and repair, nutrition, including home delivered meals, food stamps, and recreation.
  • Education
  • Day care
  • Transportation

Some services are available for free. Other are offered on a donation basis or a sliding fee scale. Still others set a straight fee for service.

Yes. If you employ an individual to perform household work, make sure you comply with requirements for paying the worker’s social security taxes.

No; however, when you are appointed as guardian, the individual may not be receiving all financial benefits to which he or she is entitled. It is part of your responsibility to seek out such assistance.

  • Social Security
  • Supplementary Security Income (SSI)
  • Veterans Administration
  • Pension from public or private employer

  • Social Security
  • Supplementary Security Income (SSI)
  • Veterans Administration
  • Workers' compensation
  • Medicaid
  • Medicare
Contact the appropriate agency for written information and/or check the Internet to make application for benefits.

If the individual is living a home, it is likely he or she wishes to remain there. You should explore what financial programs and service are available to meet this goal.

  • Chore services, including heavy cleaning and yard work
  • Home repair and remodeling
  • Homemaker, including housekeeping, meal preparation and shopping
  • Home delivered meals
  • Personal care
  • Home health care, hospice care
  • Telephone reassurance and friendly visitors
  • Respite care

If applicable, make sure the individual's homeowner's insurance policy remains paid up. If there is an outstanding mortgage, make the monthly payments. Check to ensure the locks on doors and latches on windows are secure. Make sure real estate taxes are paid.

Discuss the situation with the individual, if possible. Lay out choices available. You might want to broach this subject before the need arises as there may be waiting lists for certain housing alternatives. Consult with your attorney.

  • Apartment in private building or group home
  • Adult foster care
  • Life care facility
  • Assisted Living Facility
  • Nursing Home
  • Adult Daycare

A physician; staff at a local aging organization; an adult service worker; a hospital discharge worker; or an employee of a community mental health facility for the aged.

You may want to start by getting a list of nursing homes in your county or area.

No. Some home only provide basic service, while others offer both basic care and skilled care.

First, check which homes have available beds. Consider the proximity to the individual's friends and family. Next, visit one or more homes to get an impression of the cleanliness, ambiance, activities and quality of care. Ask yourself if this is a place where you would feel comfortable living.

Yes. But be careful. Read the admissions contract thoroughly. On the signature line, cross out any reference to "responsible party" and sign only as "guardian." Better yet, allow your attorney to read the contract before signing.

You should add a statement to the contract, "I sign as guardian and I only agree to pay any nursing home expenses from the individuals' funds, not from my own."

As guardian, you can exercise some of the individuals' rights. You have an obligation to see other rights are not violated. To help accomplish theses goals, it is useful to visit the individual often and too advocated with staff at the nursing home.

No. You have an important role to monitor the quality of care and scope of services the individual is receiving. It is your decision, to the nursing g homes, whether the individual remains a resident at the home.

Yes. You can find information on nursing homes at www.medicare.gov.

Medicare is a federally funded program that covers part of the cost of hospital and doctor care. People are eligible if age 65 or older, or permanently disabled, or receiving kidney dialysis.

Some services, such as annual checkups, routine food care and hearing aids are not covered at all by Medicare.

There are both deductibles and co-insurance for covered services. A premium is deducted each month from the individual's Social Security check. .

Contact the Social Security office two to three months before the individual turns sixty-five.

NO. There are strict limits to the amount a doctor can charge.

A doctor who accepts assignment will only charge what Medicare considers reasonable. He or she bills the patient for any deductible and co-insurance, and collects the balance directly from Medicare.

The patient must pay the bill. Medicare will reimburse the patient for a reasonable charge. You may elect to not use that doctor and find another who will accept the assignment.

No. Federal law requires the doctor to complete the paperwork. You will receive an Explanation of Benefits from Medicare, showing what Medicare has and has not covered.

Medicare covers skilled nursing home care for a limited time and only in certain circumstances. Medicare covers no basic care.

Medicaid does cover both skilled and basic care.

Medicaid is a program funded jointly by federal government and the State of Florida. Eligibility depends on an individual's age, marital status, income, assets, and in some cases, amount of medical bills. Eligibility is re-determined once a year.

There are small co-payments for some services. Reimbursement is always made directly to the healthcare provider.

Yes. There are complicated rules designed to prevent spousal impoverishment.

No.

Yes.

Yes, unless the individual qualifies for free medical care.

A living will is a document in which a person expresses his or her wishes about medical treatment in the event he or she should become terminally ill or permanently unconscious and unable to participate in treatment decisions.

Yes. It is important to provide a copy of a living will to the individual's physician so that it can be acted upon if needed. Whether binding or not, these documents may provide strong evidence of an individual's wishes.

A guardian has the right to authorize or refuse procedures for the diagnosis and treatment of injury or illness. This includes physical examinations, tests, inoculations, dental work, non-surgical treatments and surgery.

If the individual has a personal physician, let him or her know you have been appointed guardian. Find out whether the individual is undergoing any treatment, including taking prescription medication. Ask how often the doctor wants to see the individual.

Yes. The individual should then undergo a comprehensive examination.

Yes. If you do change, make sure the new doctor gets all medical records.

One important issue is to find out whether the individual needs any adaptive devices such as a new prescription for eyeglasses, a hearing aid, a wheelchair or the like.

Speak with the doctor about treatment options, side effects and prognosis. Obtain the doctor's recommendation. Get a second opinion if this is a major decision.
Consult with the individual if possible. Try to follow his or her present or prior wishes if known. If these wishes are unknown, act in what you perceive to be the individual's best interest considering the information available to you.

Yes. But the ultimate decision is yours.

No.

Yes. Have an emergency plan ready before an emergency occurs.

A guardian may arrange for outpatient counseling or therapy and consent to psychotropic medication.

An individual might need treatment for depression or affective disorder counseling for grief or substance abuse.

You should consult your attorney and seek a probate court determination before making decisions affecting the Ward's life.

Consult your attorney.

If the issue of marriage of the individual arises, it is best to petition the court for instructions unless the person is not determined as incapacitated with respect to marital decisions.

The court can grant you power to pursue divorce.

The number of times you should visit the individual is dependent on the needs of the individual. Factors include whether the guardianship is plenary or limited, the living situation of the individual, his or her health, the effectiveness of telephone contacts, and the incidence for visits by others the individual knows.

For some individuals, one visit each week would be appropriate; for others, once a month might suffice.

Again, this depends on the needs of the individual. Some individuals may prefer shorter visits, occurring more often. Others may need time to emerge from a withdrawn state.

One purpose is to ensure the daily needs of the individual are being met. This is important both for individuals living in their own homes and for those in nursing homes. Staff may be more attentive to the needs of an individual who has visitors.

During the visit, you can observe the physical appearance and frame of mind of the individual, listen for any complaints from the individual, check on his or her possessions, and consult with staff. Visits are also a means to develop a relationship of trust and to learn more about the wishes of the individual.

Finally, a visit is a social contact for the individual. For some, a guardian will be the only visitor he or she has, the only link to the community.

Yes, although this is not a requirement. As guardian, you should be aware of what you must do and what you can do. Without efforts by the guardian, the individual may be unable to enjoy a ride in the sunshine, a restaurant meal, a trip to the movies, an opportunity to shop.

You should honor the wishes of the individual in this regard.

No. Indeed, for purposes of judging the care an individual is receiving, it is better if the nursing home does not know of a visit in advance.

Yes. Note in a diary the date of a visit, the amount of time spent, any contacts aside from the individual, and your observations.

A guardian must file an initial report with the Court within sixty days after appointment.
A guardian must file an annual guardianship report with the court on a preprinted form or electronically, if applicable.

The annual report is due ninety days after the end of the fiscal year that the guardianship commenced. The due date for the report is important-write it down on your calendar each year. For example, a calendar year guardianship is due by March 31st.

In the report, you must inform the court of the individual's:
  • Living arrangements
  • Physical and mental health
  • Medical treatment
  • Social activities
  • Visits
  • Need for continued guardianship.

One good idea is to keep an informal diary, including date of your visits, doctor appointments, and services obtained and significant occurrences. You can then use information from the diary in completing your report.

Although not required as part of the report, it may be helpful to keep a record of the time you spend on guardianship matters, broken down into visits, appointments, errands and paperwork.

If you are guardian of the property, you must file an annual accounting with the Court due at the time the guardianship report (above) is filed.

An accounting shows all money and property received during the year, and all expenses. Both receipts and expenses can be listed by category. For example, the total amount of Social Security checks received during the year or the total amount paid for nursing home expenses can be listed on a single line.

An accounting also shows the value of all property at the beginning and end of the accounting period.

You may request an extension. If you fail to file a report, you can be suspended or removed as guardian.

The report provides feedback to the court on the condition of the individual and the performance of the guardian. As guardian, use the report as an opportunity to assess your role.

Any fee a guardian charges is subject to court approval. Guardians charge between $0 and $75 per hour for their services with professional guardians charging $75 per hour. Family members usually do not charge at all.

You must decide whether you feel comfortable charging a fee as a guardian for a family member or friend. Whatever amount you wish to charge is always open to review by the court.

Yes. You are entitled to reimbursement for out of pocket expenses, such a s mileage, postage, copies, and long-distance telephone calls.

Generally, money for fees and expenses comes from the individual's assets. For cases in which the need for a guardian arises from an automobile accident, no fault insurance benefits may be available.

Yes. You cannot have an informal arrangement for payment of the fee not approved by the court.

The court must approve any fee requested for reimbursement of expenses. You should keep good records of time you spend on guardianship matters. The burden is on you to show you are entitled to the fees you request.

If you, your spouse, or your child wishes to charge for room and board, you must first get approval from the court. Charges will only be approved if reasonable.

Yes. The law requires you to have a lawyer. It is a good idea to have a written fee agreement between you and the lawyer. Only reasonable fees will be paid after probate court approval.

There is no sure-fire way. Here are some suggestions: Ask friends, neighbors, or relatives for someone whom they have been pleased with and who has experience handling guardianship matters.

Call the county or state bar for a referral service that will provide you with the names of one or more attorneys who handle guardianships.

If you have questions about your responsibilities or the individual's rights, do not hesitate to contact your lawyer for advice.

Yes. You may need advice as to whether a federal income tax return must be filed.

Yes.

The law provides you are not personally or financially responsible to other people due to the acts of the individual.

A lawsuit should not succeed if you act within your authority and you make decisions in good faith after consultation with medical personnel. If you are threatened with a suit about a proposed decision, contact your attorney.

Yes. If you act improperly in handling the individual's funds or care, or you act beyond your authority, you may be held personally liable.

  • Act for the best interests of the individual.
  • Know the limits of your authority.
  • If you have questions, ask your attorney.
  • Document your activities.
  • Keep the individual's money and property separate from your own.
  • Use common sense.

Some individuals may need a guardianship for a relatively short time, perhaps as they recover from a stroke. Other individuals may suffer from a degenerative condition such as Alzheimer's disease, and need a guardian for the rest of their lives.

You should petition the court for restoration of capacity.

You can petition the court for modification of your powers. The procedure will be much the same as in the initial petition for guardianship with notice to interested persons and a hearing.

Yes, consult your attorney about the process and procedure for signing and being discharged as guardian.

First contact any family members. Notify your attorney and provide a certified copy of the death certificate and the individual's will if you know its location.

Yes.

If there is no family and the individual had not made any plans, you can make funeral and burial arrangements paying with the individual's funds. If you do not have control of the funds, seek payment from the person that does.

One or more of the following sources may be available to help defray the cost of funeral and burial:
  • Social Security death benefits
  • Veterans' benefits

Generally, your responsibilities end at the death of the individual. If you have possession of any assets of the individual you would transfer them to whoever is appointed as personal representative for the estate, but you will be required to do a final accounting.





 
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