Understanding Elder Law

Overview of Elder Law

931895_30727375Elder law can be defined as a holistic approach to assisting the elderly with their legal needs. Traditional estate planning focuses more on post-mortem planning and disposition of assets. While elder law attorneys are skilled in these areas, the natural extension of this practice is to assist the elderly with their pre-mortem, or lifetime needs.  Areas of elder law practice include health and personal care planning, such as advance directives, fiduciary representation, capacity issues, guardianship, powers of attorney, financial planning, public benefits advice, resident rights in long term care facilities, and probate and trust administration.

For example, in addition to providing a menu of traditional estate planning services, our firm also focuses on guardianship/incapacity, and Medicaid planning to assist in covering the cost for long term nursing home care and special needs planning to plan for the future of a disabled loved one with special needs. Please view the information below as it pertains to each one of these practice areas.

Guardianship/Incapacity

Guardianship is the court supervised process of removal of some or all of the civil rights of an individual due to their inability to manage his or her daily affairs and appointing a guardian to manage those affairs for the individual. In Florida, guardianship is covered by statutes, which are contained at F.S.A. chapter 744. There is also a Guardian Advocate statute contained at F.S.A. s. 392.12, which applies only to persons with developmental disabilities. The policy in Florida is to use the least restrictive means to assist the individual in managing their daily affairs since declaring someone totally incapacitated and removing all of their civil rights is a drastic measure. A plenary guardian is someone who has been appointed to manage ALL of the ward’s affairs and exercise ALL of their delegable powers, while a limited guardian only manages those affairs and rights appointed by the Court.

Guardianship proceedings are begun by the filing of a Petition to Determine Incapacity for an individual. If a guardian is appointed for that individual, he or she becomes a ward. Guardianship can be a costly and time consuming process, as once a Petition is filed, the individual will either have an attorney appointed or hire their own attorney to represent them in the guardianship proceeding. Then a three person examining committee is appointed to evaluate the individual’s physical, mental and functional ability to take care of their daily affairs. A report is then generated by each member of the examining committee and a hearing is conducted to determine what level, if any, of guardianship should be appointed by the Court. The Court will enumerate the nature and scope of incapacities and specific legal rights which have been taken away by the Court. Typically, the ward’s assets are used to pay for the guardianship proceeding. After a guardian is appointed, he or she must file a care plan for the ward and their assets.  Annually, the guardian must file annual reports and annual accountings, unless exempted.

Guardianship can sometimes be avoided through proper estate planning documents such as advanced health care directives, durable powers of attorney and various trusts. However, in some cases, a guardianship proceeding is unavoidable and a well-intending friend or family member must file a Petition and seek to have a guardian appointed for the individual. In many instances, a guardianship proceeding can be a hotly contested matter due to either the unwillingness of the individual to give up control of their life and have a guardian appointed over them and/or due to intra-family relations.

Our firm will assist you in navigating the guardianship process, will attend all hearings necessary, will file all necessary legal papers with the court and will work with the court in establishing who the proper guardian should be and in developing a proper care plan for the ward and their assets. It is our sincere hope that we will be able to remove some of the stress and emotions experienced by our clients in guardianship proceedings and shoulder that burden ourselves.