When people hear the word "guardianship," there are mixed responses depending on their own past experiences or what they've read about or seen in the newspapers. Several years back, the local newspapers contained horror stories regarding guardianships. There were some unscrupulous guardians who took better care of themselves than their wards. It was then that guardianship proceedings were revamped and reorganized. There are times a guardianship is the only answer for a situation. Sometimes a guardianship serves a very distinct purpose.

Florida has two kinds of guardianship. One is when the individual is incompetent or a minor and the guardianship is under Florida Statute §744. It's true a guardianship usually requires more work for the guardian or caregiver as well as more costly. An annual report and an accounting must be filed with the Circuit Court showing all receipts and payments. If the guardian is not a family member and is a professional guardian who is being paid, the guardian must keep time records showing dates and times for work done. Additionally, if real estate needs to be sold, a petition must be submitted for court approval.

Prior to having a guardian appointed, there must be medical evaluations of the proposed ward, there is a hearing before a judge or master to determine if the individual is incompetent. At that time, rulings are made as to what rights the individual should no longer have such as should the person drive, vote, get married, enter contracts, etc. Being a guardian means you have full responsibility to oversee that individual's care and financial security. Sometimes this can be a very heavy responsibility; and the Court will hold you responsible.

Acquiring a guardianship is not an inexpensive proceeding. There are court costs and examination fees in addition to legal fees when the guardianship is originated. Once the guardianship is in place, there are annual attorney and audit fees. But there are times, it is the only answer available.

If an individual prepares a durable power of attorney and health care surrogate when he or she is competent, a guardianship of this kind can probably be avoided. Another factor to consider is that a guardianship takes time to get through the system. With a power of attorney or health care surrogate, the named individual can act much faster.

The second kind of guardianship that is not so widely known is under Florida Statute §393.12. This is a guardianship that is specifically for people who have developmentally disabled children of any age. In this proceeding, there is no adjudication of incapacity. The guardianship is granted on the basis of the developmental disability. There is no stigma of being labeled "incapitated" or "incompetent."

A little known part of guardianship of a minor under §744 is that at age 18, the minor becomes an adult and the guardianship according to the court system ends which means the guardian no longer has any powers. We have found some parent guardians are not aware that their powers have ended.

The wonderful part of a guardianship under §393 is that it does not terminate at age 18. The reason for the guardianship still exists, the child is still developmental disabled. In a guardianship under §393, it is still determined by the Court whether the individual should drive, vote, marry, enter contracts, etc. This can be changed as time progresses if circumstances require it.

Sometimes people fuss about laws that our State legislature passes, but there are some very beneficial ones that serve distinct purposes. Remember, abuse of powers created the need unfortunately.