As
you deal with aging parents, you enter a whole new arena of elder law
and estate planning. During this process, you will be exposed to a
wide range of terms that you may not recognize or understand the
differences between.
For
example, while the terms of conservator and guardian may be used
interchangeably, they are not one and the same. The differences
between the terms could prevent you from being able to perform the
required duties when needed. Here is a brief description of each of
these.
Guardianship
If
you are granted guardianship of your parent(s), you will be
responsible for making decisions and performing duties that they are
unable to do. These decisions or duties could include medical, legal,
financial, and managing any other affairs.
All
forms of guardianship in the state of Florida are appointed and
supervised by Probate court the requirements for an incapacitated
adult are outlined in Chapter
744 of the Florida Statutes
.
Involuntary
Guardianship
Guardianship
may be granted on a voluntary as well as an involuntary basis.
Involuntary guardianship is granted when a person, such as your
parent, is no longer able to handle their affairs. Many times, this
may be due to a sudden onset of medical issues or even as the side
effects of natural aging.
The
petition, or request, for involuntary guardianship may be filed with
the court by you, a friend, other family members, social worker, or
anyone else who is concerned with your parent's welfare.
Voluntary
Guardianship
Voluntary
guardianship is often requested by the person who needs guardianship,
a family member, or friend. If the request is being made directly by
your parent, or the person in need of a guardian, the court may
require the person who they will refer to as "the petitioner,"
to submit medical documentation to ensure that they are competent to
make this request.
Voluntary
guardianship may be required due to age, medical issues, or other
physical limitations, but it may also be put into place for a person
to make certain decisions during a limited time period. This petition
is often done in advance of services being needed.
Guardianship
may be limited to only certain duties at the request of the
petitioner or may be plenary, which will allow the guardian to
exercise authority over all duties.
Both
voluntary and involuntary guardianship usually require an annual
report to the court for the purposes of oversight. They both can be
changed at any point by filing a new petition with the court.
Conservatorship
A
conservator is also a court-appointed position. Whereas a guardian is
able to handle any day-to-day needs or decisions of the person they
have been granted guardianship over, a conservator is primarily
responsible for the financial affairs of the person who is
incapacitated or who is considered to be an absentee. The rights and
duties of a conservatorship are outlined in Florida
Statutes Chapter 747
.
A
conservator's duties may include paying bills, investing and managing
accounts, and managing real estate or rental properties. Any other
duties, such as making medical or legal decisions, would not be
within the realm of a conservator. These duties or decisions would
need to be executed by someone who has been appointed guardian or
under a durable power of attorney.
In
order to file a petition for conservatorship, the person filing must
have some type of interest in the estate or property of the person
they would serve as conservator for. This usually will include their
spouse, parent, adult child, or sibling.
Elder
law terminology can be very confusing, but you are not alone.
Fortunately, Donald
B. Linsky & Associate PA
can
assist you with all your elder law and estate needs. We will be glad
to assist you in obtaining any necessary appointments that you may
require. Give us a call today so we can get started.
