Who can the family turn to when legal issues arise?  

By David F. Dumont, N.G.A. Registered Guardian

As we are all aware, we live in a different day and age than the one that we grew up in.  I remember growing up in New Hampshire, many of my friends had their grandma or grandpa living with them.  Taking care of family was the norm.  Someone would always be there. 

Well, times have certainly changed.  Grandmas and Grandpas retired to Florida, and children followed their dreams to every part of the country. 

Now with children not living in the same town or even the same state as their senior parents, the risk of exploitation of the elderly becomes ever more common.

In an effort to protect elderly residents from people who deal in exploitation or from well intentioned but mis-informed "do-gooders", the Florida Legislature established Chapter 744 of the Florida Statutes or what is commonly called "the Florida Guardianship Law".

The Florida Guardianship Law was set up to protect the health-care needs as well as the financial needs of an incapacitated person.

A Professional Guardian is a person appointed by the Court to assume responsibilities for an incapacitated person, as defined by the Court.  There are two basic types of Guardianship, Guardianship of the Person and Guardianship of the Property. 

The Guardianship of the Person is assigned the responsibility of the personal well-being and health care of the incapacitated person.  This may include determination of living arrangements i.e. Managed (In-Home) Care, Assisted Living Facility or Skilled Nursing Center, authorization for medical care, including surgery, etc.

The Guardian of the Property is assigned responsibility of the finances for the incapacitated person.  This may include, selling of real estate and/or personal property, paying all bills, investing of assets, etc.

The appointment of a Legal Guardian is initiated when a concerned party petitions the Court to determine capacity, or lack of capacity of an individual.  The Court appoints an examining committee to examine the alleged incapacitated person who submits their findings to the Court.  The Court also assigns an Attorney to represent the alleged incapacitated person. 

After the Judge reviews the reports from the examining committee, he interviews the alleged Incapacitated person, and their attorney.  After this interview, the judge makes a ruling on the capacity or lack of capacity of the person. 

If the person is found to lack capacity, the Judge appoints a Guardian.  Usually a relative is appointed guardian, but if a relative is not available, or is not practical, a Professional Guardian is appointed.

Can one "Pre-Plan" for Guardianship?  The Florida Guardianship Law now makes provisions for naming a "Pre-need" Guardian, as well as other options.  This enables a person to make arrangements for someone they know and trust to serve as guardian for themselves or their loved-one, should the need arise. 

Another type of Guardianship is VOLUNTARY GUARDIANSHIP.  Voluntary Guardianship is when a person (who is competent) requests the court to appoint a person to serve as guardian of their property.   The Voluntary Guardian is similar to a Durable Power of Attorney, with the exception that the Voluntary Guardian must be bonded, and file annual accountings to the court, where the (POA) Power of Attorney is not accountable to anyone.

What benefits does an incapacitated person have in having a Professional Legal Guardian?  Every elderly person, whether living at their home with caregivers, in an Assisted Living Facility or Skilled Nursing Center, needs to have someone advocating for them.  A professional Legal Guardian represents their client form a position of professional competence and experience.  The Professional Legal Guardian acts as an advocate for their client, whenever things may go wrong.

We have all heard of the horror stories of residents of nursing facilities suffering from abuse or neglect.  The most effective way of avoiding such tragedies is to have someone visit the care facility regularly.  Someone reviewing the nursing chart and attending "Patient Care Conferences" acting as an advocate for the resident.

If you have any questions regarding Florida Guardianship Law and the role of the Professional Guardian, please contact: David F. Dumont / Rosalyn Dumont. e-mail:  This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .