A recent article at Forbes.com is a reminder to all of us who have aging parents that eventually our parents shouldn’t be driving anymore.  Taking the keys from Mom and Dad is never an easy thing to do, but is often necessary.  The story from Forbes is unusual in that the adult children (all five of them) worked together as a team to accomplish the right result.  It’s also unusual in that both parents suffered dementia at the same time, but both refused to discontinue driving even though they clearly were hazards on the road.

The successful result of taking the keys from both Mom and Dad in this case was accomplished thorugh the team work of the children and obtaining a conservatorship over both parents.  In Florida, the appropriate action would be a guardianship – which is similar to or the same as a conservatorship in many other states.

In a full guardianship, one or more people – usually adult children in the case of parents suffering dementia – are appointed by the probate court to take control of the financial, personal and medical care of the parent suffering from dementia, or other debilitating physical or mental condition.  The Florida guardianship law is found in Chapter 744 of the Florida Statutes.

Often the need for a guardianship can be avoided through the effective use of durable powers of attorney, health care powers of attorney, or living trusts.  Unfortunately, all too often families do not engage in proper estate planning that includes such advance directives until it is too late.  Even if there are such advance directives in place, if the aging individual is unwilling to cooperate with the necessary actions, they can revoke outstanding powers of attorney or health care powers, which will force the need for the guardianship even though proper planning was completed and advance directives are in place.  In that event, there really is no option to a court supervised guardianship.

The appointment of a guardian comes only after there has been a judicial determination that the elderly person is no longer capable of managing their own affairs. The first step in that process is the filing of a “Petition to Determine Incapacity.”  Upon filing such a petition, the probate court will appoint an “Examining Committee.”  The examining committee consists of three professionals – a psychiatrist, a physician, and a social worker.  Each of the three members of the committee will examine the individual, the individual’s medical records, and will meet with the individual who is the subject of the guardianship, and if necessary the individual’s family members.

The probate court also appoints an “attorney ad litem” who is an attorney familiar with guardianship law, and who will represent the interest of the proposed “Ward” who is the subject of the petition for determination of incapacity.  The attorney ad litem will meet with the proposed Ward to determine that the proposed Ward understands what is being done, or does not have the capacity to understand the process.  The attorney ad litem will file a written report with the probate court regarding the legal capacity of the proposed ward.  At the proposed Ward’s election and cost, a private attorney can be retained who will replace the court appointed attorney ad litem.

There will be a hearing with the probate court where the examining committee’s conclusions will be provided to the probate judge, the attorney ad litem’s report will be presented, and the probate judge will take any other testimony from any interested person, including the proposed Ward.  Usually, at the conclusion of the hearing, the probate judge will enter an order.  The order will detail the probate court’s findings with regard to the proposed Ward’s legal capacity.

The probate court will rule that the proposed Ward is totally incapacitated, legally, or that the proposed  Ward is partially incapacitated, listing the specific areas of incapacity.  The probate court’s order will require that a guardian be appionted to care for the financial affairs of the Ward and will then appoint a guardian of theproperty, or it will require that a guardian be appointed for the care of the person of the Ward in which case the appointment will be of a guardian of the person.  If the probate court determines that the Ward is totally legally incapacitated, the court will appoint a “plenary guardian.”  A plenary guardian assumes full control over all legal, financial and personal affairs of the Ward.

The determination of legal incapacity is quite signficant inasmuch as it removes all civil liberties and rights (other than the right to counsel) from the individual.  The plenary guardian becomes responsible for all decisions involving the Ward including where to live, all financial decisions with full control over all of the assets and property of the Ward, and all medical care decisions.

The guardian must seek court approval for all financial decisions, and must submit to the probate court a written annual plan for the care and living arrangements of the Ward.  The guardian must also provide an annual accounting to the court for all financial activities associated with the Ward’s assets.

While the guardianship procedure is an arduous one, when aging adults become unable to take care of their own needs, or when they insist on driving when they are dangerous to everyone on the road, a guardianhip is necessary, and desirable, for the protection of the Ward – and the rest of us!

The Forbes article is illustrative of how a guardianship/conservatorship can protect our loved ones, and the general public.  It’s what you might call “tough love” directed toward one’s parents.  As the baby boomers’ parents continue to age into their 70s, 80s and 90s, be prepared for a substantial increase in the need for guardianships.  Learn how the process works, so that if, or when, it is needed in your own family that you are prepared to take the appropriate steps.  You will be protecting your parents from themselves – and for us all.

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