Attorneys Stephen Korshak and Lee Karina Dani

What you should know about guardianship and estate planning

by | Oct 2, 2017 | Guardianships |


There may come a day where you may need to make some hard choices about the futures of your elderly relatives in Florida. As they get older, the odds of them becoming injured or falling ill increase. They may become unable to care for themselves in the capacity they were once able to. When that day comes, it may be time for you to consider a guardianship.

If your relative does not make legal arrangements for someone to take over their affairs before a qualifying event renders them incapacitated, the courts will step in and do it for them.

It is important for you to encourage your older family members to choose an executor for their estate and to include in their estate plans powers of attorney to avoid having some random person they do not know being chosen for the role.

The courts can determine capacity

When there is no executor or power of attorney in place, a court must determine your loved one’s level of incapacity to establish guardianship. Courts will evaluate their mental capacity and physical health and all supporting evidence to determine if their inability to care for themselves and handle their affairs is temporary or permanent.

Common reasons for incapacity include:

  •        Cognitive impairment
  •        Health conditions
  •        Alcohol and drug abuse
  •        Memory issues

Many older people do not realize when they are unable to make sound decisions regarding their health, medical needs, finances and responsibilities. It is often left up to their loved ones to petition the courts for a guardian to keep their older relatives from squandering away their funds and making decisions that result in the mismanagement of their affairs and quality of life.

Keep in mind that guardianships are a bit restrictive because of the amount of court oversight required. Individuals who want more flexibility and control over their end-of-life affairs should include provisions in their estate plans, such as power of attorney, choosing an executor and creating irrevocable trusts and advance directives.

Because everyone’s circumstances are unique, you and your older relative should discuss the future and use a variety of estate-planning tools to plan for it.