Elder Law Explained: Guardianship

This is the second episode in a five-part series on Elder Law. In episode 10 we discussed the basic elements of estate planning and why it’s important. If you missed that, be sure to double back and give it a listen because it was packed with a lot of great unnecessary information. In this episode we discussed guardianship. Planning ahead legally for the later years of life with an estate plan is ideal, but what happens when someone fails to get their affairs in order and becomes incapacitated due to advancing age and illness or a disability? Who decides who will make the decisions for the individual And what protections are in place to safeguard their well-being?

Here is what we discussed

  • What is Guardianship
  • Who can become a Guardian
  • Why would someone need a Guardian
  • Are Guardians certified and/or monitored
  • The process to establish a guardian
  • The pros and cons of Guardianship

Links and Resources

Read the full transcript
Closed Captioning

Episode 11 – Elder Law Explained: Guardianship

Recorded 5/30/20• 33:33

SPEAKERS

Sara Fuentes, Liz Craven

 

Liz Craven  00:00

Support for this episode of sage aging comes from Polk ElderCare Guide. Designed with families in mind. Polk ElderCare Guide gives you the tools and education necessary to make quality choices about senior care and living options in Polk County, Florida. available in both English and Spanish. You can view the guides and much more online at PolkElderCare.com.

 

What does guardianship mean? When is guardianship the right choice who can act as a guardian And what responsibilities will they have? If you’re noticing that your loved one is experiencing changes that affect their ability to make and communicate sound decisions and maybe they need a little help, then this is the podcast episode for you.

 

Hi, I’m Liz Craven and like so many of you, I’ve been a caregiver for people that I really love. I understand how tough the day to day of a caregiver can be, and how hard it is to come by good information. Here’s one thing I know for sure. Education is key. Equipped with the right tools and good information. Caregivers will experience less stress and find better balance and day to day life. I’ve built my career on connecting older adults and those who care for them to the education and resources they need to navigate the aging journey. This show is dedicated to the same. Welcome to the Sage Aging podcast. Hit subscribe now and let’s get started.

 

Hello and welcome to Episode 11 of the sage aging podcast. I’m your host Liz Craven. This is the second episode in a five-part series on Elder Law. Last week we discussed the basic elements of estate planning and why it’s important. If you missed that, be sure to double back and give it a listen because it was packed with a lot of great unnecessary information. Today we’ll be discussing guardianship. Planning ahead legally for the later years of life with an estate plan is ideal, but what happens when someone fails to get their affairs in order and becomes incapacitated due to advancing age and illness or a disability? Who decides who will make the decisions for the individual And what protections are in place to safeguard their well-being? The answers to those questions and more are just ahead. My guest today is Sarah Fuentes of Integrity Guardianship and Senior Services. Sara is a professional guardian and geriatric care manager. Prior to becoming a professional guardian, Sara spent 13 years in the legal field working in probate, so she’s no stranger to the unique issues faced by the aging population. Sara has found passion and purpose in her current occupation and serves her clients so well. To learn more about Sara and her business. Check the resources and links section of the show notes for this episode, which can be found in the blog post for Episode 11 at SageAging.us Welcome to the show. Sara, thanks for joining me.

 

Sara Fuentes  03:55

Thank you so much for having me. I really appreciate it.

 

Liz Craven  03:58

Well, I’m so happy to have he chance to chat with you today. Obviously, I think that all of the topics we cover on this podcast are important. But this topic is one that I think so few people understand or are even aware of. Before we get started with our topic, though, I would love to do a little quick lightning round of get to know you questions that good for you.

 

Sara Fuentes  04:21

That works for me.

 

Liz Craven  04:23

Awesome. Okay. Your first question is, what is your favorite outdoor activity?

 

Sara Fuentes  04:30

Well, I actually love camping, my husband and I recently got a travel trailer so that we have more ability to see the United States. That’s something that we are both really passionate about is seeing and experiencing relaxing creation. So we can do that and it’s a perfect activity for us.

 

Liz Craven  04:54

All and it’s perfect timing to have a travel trailer with travel being so restricted right? Now you won’t be stuck at home like a lot of us will. That’s right. Okay, the second question, what’s your favorite holiday?

 

Sara Fuentes  05:11

I have to say, I’m gonna be cliche Christmas. And the reason that that is such a nice holiday for us is we always go back to Mexico. My husband is from Mexico. So we visit family, we spend about three weeks over there and just soak up some, again, relaxation, and spend time with them. And it’s really nice experience because things are laid back over there. It’s just a little bit different than it is here. So it’s more tranquil time for us to reflect on family and what we have been blessed with.

 

Liz Craven  05:49

Oh, that’s wonderful. Okay, and the last question is, what’s the last song that you listened to?

 

Sara Fuentes  05:58

Okay, I love A variety of music but I was born in the 80s. So I actually love REO Speedwagon and all those songs you know from different bands during that time so can’t fight that feeling was the last song I listened to.

 

Liz Craven  06:14

Oh, yes. I’m you can typically find me listening to the Eagles, Journey, Queen, any of that stuff. I’m all there too. Great. Well, thanks for doing that with me I really enjoy allowing our audience to get a little window into who we are before we jump into our topic, but let’s not waste any more time and let’s get into it. So guardianship, why don’t we start with what is Elder Guardianship and who can become a guardian?

 

Sara Fuentes  06:49

Okay, that’s a great question. So, at this point, I don’t really want to focus in too much on Elder Guardianship because guardianship is a very broad process. But what guardianship is, is the management of a person’s affairs, which is broken down into either the person or the property, or both of them together. And this happens after someone has been deemed incompetent by the court in your particular state that you reside in. So that’s what guardianship is. And I want to try to keep this slide and not bore anyone, but there are some things that are important to be specific on. So I’m going to speak specifically to Florida because I am a guardian in the state of Florida. However, each state has the guardianship process written into their statutes. So if you have questions about guardianship in your state, you would need to reach out to an elder law attorney who can help you with that. Okay. So some of the guidelines in the state of Florida are the interested person instead someone’s life could become their guardian. Loved One family member, but there are specific guidelines and qualifications that they have to meet. So if they do meet those, that person could be a guardian could also be a professional guardian. And there are strict guidelines that professional guardians have to meet. And those guidelines are set out by the office and public professional guardians, which falls under the Department of Elder Affairs with the state of Florida.

 

Liz Craven  08:32

Why would a guardian become involved in someone’s life in the first place?

 

Sara Fuentes  08:37

Well, there are a few reasons why a guardian will become involved, but the underlying problem comes from an individual that is incapacitated. Some scenarios of a need for a guardian to become involved in someone’s life would be probably the first and most familiar situation we have and that is someone that suffers from cognitive deficit, such as dementia, more specifically Alzheimers, Lewy Body or some other diagnosis in that area. And some signs that you can see the someone is suffering from this is they are possibly getting lost while they’re driving. Or they may have been a victim of exploitation. So they may not have been diagnosed by a doctor. But there are some telltale signs that you will see that can alert you to the possibility of someone losing their capacity. And it’s very important that we not brush these things that we see underneath the rug. Because when you start to see these things, normally the person that is experiencing these different scenarios, has been experiencing it for some time and they really most of the time when I try to hide it because they feel like they’re going to lose their independence and they want to Keep as much independence as possible. So that’s our first scenario. The second scenario would be if the person may have sustained some sort of an experience that renders them incapacitated. And this would be like a traumatic brain injury, stroke or something like that, that we don’t see coming in our future. We’re okay, and then this happens. So that’s a very life changing experience. The third item would be potentially someone who struggles with mental illness. This is something that we’re just starting to see an experience. But because more and more people who are struggling with mental illness, they are coming to the forefront. This is probably something we’re going to see in the future that more Guardian ships are related to mental illness. Another area is if an individual is born with a disability or develops a disability before the age of 18. A guardian would be about pointed, but in those instances, it’s called a guardian advocate because they had a disability before the age of 18. And finally, this is one of the most important types of situations. If there is a person that is mentally competent and understands they’re experiencing difficulty managing their finances, this person can voluntarily acknowledge that they need a guardian. And this would be a voluntary guardianship. So those are the different instances when a guardian will become involved in someone’s life.

 

Liz Craven  11:34

That covers a lot of ground. So here’s a really important question. Are guardians certified and are guardians monitored?

 

Sara Fuentes  11:45

Well, that’s a really good question. Before early in our interview I talked about professional guardians are registered with the state. So at this point in time, we are not certified but that’s probably Something down the road that you will see that we are going to have to be certified. In the state of Florida. I can’t speak to other states. But in the state of Florida we are held again to a very high standard. We have a strict application process, we complete the state mandated course in order to even apply for guardianship, becoming a professional guardian. And once again, as with the Office of Public and Professional Guardians, which falls under the Department of Elder Affairs, when we’re going through the process, you have to remember because we are held to a higher standard. There’s that adage to whom much is given much as expected. It’s the same for a professional guardian. We’re trained and educated in this area and held to a higher standard than someone that does not have this as their profession. We are monitored. So I’ve talked about what the state requirements are, but after we become a guardian and are appointed in a guardian In case for an individual, we are monitored by the court and what’s called the Inspector General in each one of the courts, the Florida Statutes require that an in depth accounting and reporting be submitted to the court initially, after appointment. And then annually, we’re going to do that you just reviewed very closely to ensure that the Guardian does not mismanage the assets of the ward and they are receiving appropriate care. So this is something that I really want to be adamant about. We are scrutinized in our finances that we keep for the ward as well as the way we care for that person in the plan of the person. I just want to emphasize that because a lot of people have the misconception that once a guardian is appointed, that person has free rein, and that is total opposite from the truth.

 

Liz Craven  13:53

That’s really a good point to bring up because I know that people have that concern. They’re worried about bringing someone that They don’t already know and trust into their world. And we see so many things on the news where people have been exploited and taken advantage of. But what a lot of people don’t realize is that’s typically somebody who was already in their world, someone that was supposed to be looking out for their best interest, and is taking advantage of a situation. So what is the process to establish a guardian?

 

Sara Fuentes  14:29

Well, remember that each state is different, and specifically, going to your elder law attorney in the state that you reside would be where you could find the specifics to your state. But in the state of Florida, we have a process that is very serious to ensure that an individual does not have any of their rights removed, that they are capable of performing. It’s a very stringent process that takes place to garner someone incompetent of managing their life. Let’s keep this light and not get into the weeds too much. I want to keep it a high level overview. There must be a reason why a petition would be filed with the court to deem someone partially or totally incompetent. Once it’s determined that it’s a legitimate reason, an interested party can petition the court through an attorney. So you just can’t have a frivolous reason that you think that this person needs to be deemed incompetent. You have to reach out to your attorney and they will tell you, is this legitimate? Do you have the proof to back it up because you have to have proof to show where the history is of these instances that they will be deemed incompetent at this point after the petition is filed with the court and examining committee will be appointed. And this examining committee is made up of three professional individuals, physician, a either licensed clinical social worker or psychiatrist. psychologist and a lay person. So these three individuals go and see the alleged incapacitated person and formulate the reports. They file that with the court. At the same time, there is an elasaur appointed and an elasaur is a court appointed attorney that goes to represent the alleged incapacitated, they meet with that person. They present the petitions that were filed with the court. They read those to them. So this person is aware of what’s going on. There’s nothing going on behind the scenes that they don’t know about. Then the elasaur provides their report to the court. So you’ve got four different professionals that have filed reports with the court that will either substantiate a guardianship or that will not substantiate a guardianship. So after the court reviews the findings from these reports, they will always apply the least restrictive alternative to maintain that the individual keeps the rights they’re able to perform. So after that has been determined, and the person has maintained their capacity or lost some of their capacity, what we call it in the state of Florida is there would be a plenary guardianship, and the plenary guardianship is if someone loses their total rights for the person and property, or if they maintain some of their rights, then a limited guardianship will be established where the Guardian only has limited rights, they don’t have that full capacity to make decisions for everything with the Florida Statutes allows for after the Guardian has been appointed, then it’s the responsibility of the guardian to then marshal the assets of the ward and ensure the safety of that individual. Now, as I mentioned before, there is what’s called a verified inventory. And that’s filed in the Court along with a reporting outline of the plan for the person for the upcoming year. And this report addresses the mental, physical and social aspects of the ward.

 

Liz Craven  18:11

Wow, that is so involved.

 

Sara Fuentes  18:14

Mm hmm.

 

Liz Craven  18:14

It really speaks to the reason why there should be a professional involved. But for somebody who thinks that their loved one may need a guardian, maybe they don’t feel up to the task themselves. Maybe they live in another state, they are concerned for the safety and well being of someone. If they don’t have an attorney, maybe they don’t have the resources to retain one. Is there a process in place for them?

 

Sara Fuentes  18:42

Yes, there are a couple of different scenarios. So the first thing would be there are a lot of family dynamics that make up families. So you may have a good family dynamic. There may be no siblings, so you may be an only child. There may be you know, a lot of issues. underlying issues going on. So I would just give a piece of advice that if that is the case, oftentimes it is easier to get a professional Guardian involved. That way, the Guardian, maybe that would be a family member does not have the infighting with other family members that might take objection to decisions that are being made. And that Guardian can then kind of defuse the situation. They’re a biased party and looking out for what is the best interest for that individual. With that being said, though, what you would need to do is reach out to the National Guardianship Association, which could put you in touch with guardians in your state, or the Florida State Guardianship Association website. And I think you’re going to link all of this.

 

Liz Craven  19:50

Absolutely.

 

Sara Fuentes  19:51

Okay. And that website for the Florida State Guardianship Association, they give you a lot of different contacts and you can search out for And in your specific area, your county, and it will give you contact information. So that’s a good resource for you. Now, the other question that you asked was how does something like this get paid for? Guardianship can be a costly process. There are different ways you can go through it and manage that cost. First, if there are assets of the ward that can meet the cost of the guardianship, those will be utilized. The Florida Statutes have set that out. Then say someone is indigent, if they don’t have money. They have very small resources, and they need to go about the process. They’re still incapacitated, but they don’t have those resources to go through the full process. There is funding through the state of Florida that pays for different costs for the attorney, the exam. committee, the court process. But with that being said, you have to be able to verify that your income meets those levels. So you just can’t say, Oh, I’m indigent, and I want to go through this process. Well, there’s verification. And once that’s gone through to be determined if you’re indigent or not indigent,

 

Liz Craven  21:23

Right, that makes sense. Do professional guardians work closely with Life Care Managers?

 

Sara Fuentes  21:30

Yes, there are a couple of different scenarios with that. So for instance, there may be a very complex case that a guardian cannot manage 100% by themselves, so they would involve a life care manager. Or there could be the ability that the Guardian has a less complex case that they can do a lot of management on their own, but then they may have them come in for light overview And involvement according to the person’s finances, as well. So there’s a couple of different things that are going to come into play when we involve other individuals.

 

Liz Craven  22:10

That’s good to know. And just for our listeners sake, go back to episode eight of this podcast, because we talked to Barbara Harrington, all about Life Care Managers and what they do. And so you’ll want to go back and re listen to that, because that really goes hand in hand with some of the things that we’re talking about today.

 

Sara Fuentes  22:33

Yeah, Barbara is great. I’ve worked with her several times. And she just does a great job in caring for the individuals and really looking out for what’s in their best interest.

 

Liz Craven  22:45

There are a lot of good people out there out there. Yes, yes, there are. Let’s go back to the guardianship topic. What are the pros and cons?

 

Sara Fuentes  22:56

Well, being that I come from a legal background, I’ve seen the world Have the worst. So I think guardianship is a great process. I just want to interject that this is my opinion. Okay. So being that I have seen the worst of the worst, I know what could happen and being at the court comes involved, and they have oversight. That’s where my opinion lies there. But because a guardian is accountable to the court, and there are several consequences if we do not protect the ward and ensure their assets are preserved, families, our loved ones no longer have to worry about navigating the difficult journey by themselves. And they can have the peace of mind knowing that they have an advocate working for their loved ones. A guardian knows the resources available in the community that will best fit the wards needs, whether that be remaining in their home with implementation of safety measures, or if a move to an assisted living facility. The or another type of placement would be appropriate. Also, the Guardian can navigate the public resource system and know what options would be appropriate for the ward. The beauty of a guardianship is that the suggestion of capacity also can be filed after the person has proven that they can have a restoration of rights. So normally in elder guardianship, you’re not going to see that. But if you have, for instance, mental health, Guardian ships, maybe that person has improved and come a long way, there could be a restoration of rights. So guardianship actually takes a very holistic approach and looks and sees how can we provide the least restrictive alternative and if you see improvement with someone, we’re going to advocate for that person to have a restoration of rights. Now the cons. If the person that is appointed Guardian, they may retire before Process expires. And that could lead to an alternative Guardian being appointed. And depending upon the difficulty and complexity, the case could be expensive. So those are my cons. I know it’s outweighed by the pros, but I just I can’t see a whole lot of cons for the guardianship process.

 

Liz Craven  25:21

I think every situation and every scenario, especially as we age and life is changing so drastically; I think there are pros and cons to each one. And you’re right, you have to weigh the good against the bad and having someone to advocate for you, whether that’s in the form of a guardian, a life care manager or a family member. As long as there is somebody in place advocating for you. I think that’s a winning situation. It is just very sad when you see somebody who has nobody in their corner at all to help them so our big thing here is making people aware that you don’t have to be in this alone, there are alternatives and there are options out there and we want to help connect people to those. So speaking of alternatives and kind of taking control of your own life where it is, are there viable alternatives to guardianship?

 

Sara Fuentes  26:22

Most definitely there are. First and foremost because I come from a legal background, I have seen individuals try to execute legal documents from the internet previously, okay. I want to say do not do that.

 

Liz Craven  26:38

Not a good idea.

 

Sara Fuentes  26:39

Not a good idea. In the state of Florida, and I’m sure this is going to be relevant to every single state, there are reasons an attorney practices law, and they protect you by executing the documents that are in compliance with Florida law. Okay, so a lot of times you can go on online and get those documents don’t do that. So that’s my first plug. But you want to be sure that you’re having your estate planning documents put in order. So this is a way to make sure your wishes are followed. Because while you have capacity, you can do this.

 

Liz Craven  27:19

And let me interject here for our listeners as well, Episode 10, which was the episode prior to this one. We talked all about estate planning and all of the documents that you’re referencing right here.

 

Sara Fuentes  27:33

Perfect. There are several documents but the most important one is a declaration naming pre-need Guardian, and that gives you the ability to choose who you want to be your guardian, and your attorney will know what qualifies or disqualifies that person if they can be your guardian or not. So that’s why, number one, it’s important to have that attorney involved. Number two power of attorneys are very powerful document that could possibly avoid guardianship. Now, not in all instances, but has to be a very trustworthy person that could act as your power of attorney. And that would be another option. There are alternatives of having a care manager, a life care manager or a geriatric care manager that could become involved. And a care manager can work directly with the individual that needs assistance or the family. You might have a family that becomes aware that there’s problems and that individual that ledge incapacitated is not going to acknowledge those problems. They’re not going to agree with their lack of capacity, but the family sees it and then they can work with a care manager to start assisting that person. So that’s a beautiful thing too. There are options without removing someone’s capacity. And we also did talk about the voluntary guardianship, if you don’t mind, I would like to give a particular scenario that I have for one of my clients about this. Sure. I had an individual that I got a call from a counselor that was meeting with her and she said, Look, I’ve got this person that she is in dire straits. She had a son that executed estate planning documents that took everything she had. She couldn’t pay her monthly run at the assisted living facility. And her health was declining. So I said, Yes, I will definitely get involved. This is a pro bono case. We had nothing to work with. What we did was a voluntary guardianship because she knew she needed help. She couldn’t manage her finances anymore. And we worked on a power of attorney so that gave two options. I was overseen by the court with the violence guardianship and the power of attorney Let me help her with her person. So let’s fast forward. Because I know the resources available to her, I have gotten her on Aid and Attendance with the VA because her husband was a Veteran that served at wartime. I have got her on Medicaid, and she’s getting her normal Social Security. She’s in a safe environment. She’s thriving now. So this is a success story with a voluntary guardianship with a power of attorney and that she is doing well now.

 

Liz Craven  30:36

Oh, that’s great. I love to hear the happy endings.

 

Sara Fuentes  30:40

Me too.

 

Liz Craven  30:41

And people need to recognize that everybody can have that happy ending. If they pay attention to the details and educate themselves a little on the forefront.

 

Sara Fuentes  30:50

Yes, ma’am.

 

Liz Craven  30:52

You mentioned at some point, senior cohousing as a good alternative.

 

Sara Fuentes  30:57

Yes, senior cohousing can help those individuals that are retiring or may have become a widow or widower and they don’t have the community or friends and the engagement with others that they’ve had in the past. A senior cohousing community will give that person the ability to live in a small community where relationships can be formed, and similar like-minded individuals live. As we all know, keeping engaging and active is an important part of keeping your independence and the community that is so important to our lives. It also gives family a peace of mind to know that their loved one is not isolated in their home, but they have people living close by that can keep an eye out for them. It gives these individuals a sense of community, creating new friendships, possibly even pushing out of their comfort zones to experience things they never have before. So I would really encourage this while someone has capacity, and they have the ability to move into senior cohousing do it.

 

Liz Craven  32:09

Great advice and I’m going to link that particular episode. Recently we spoke to Gail Bagley about senior cohousing and that was a really great informational piece. I will put a link to that in our show notes as well. My goodness, we have covered a lot of ground today. And I hope everybody listening had a notepad out because I feel like we’re just throwing so much information out there at people, but it’s all good information. And it’s all designed to make sure that everyone can live the quality life that they deserve. So thank you so much, Sarah, for joining me today and for sharing your knowledge with us and helping us to learn more about guardianship and elder law in general.

 

Sara Fuentes  32:56

Thank you so much for giving me this opportunity. I really enjoyed it. And I hope I know it will make a difference in someone’s life.

 

Liz Craven  33:04

Thank you so much.

 

Thanks for listening. If you found value in today’s conversation, I’d really appreciate it if you would click Subscribe now and share the sage aging podcast with a friend. If you have topic ideas you’d like to share, we’d love to hear from you. Drop us a line at info@sageaging.us

 

 

Thanks for tuning in! If you found value in today’s conversation, I’d really appreciate it if you would click Subscribe now and share the sage aging podcast with a friend. If you have topic ideas you’d like to share, we’d love to hear from you. Drop us a line at info@sageaging.us

Liz Craven

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As I’ve been preparing to launch this podcast I’ve enjoyed revisiting stages of my own life and reflecting on how this topic became such a passion for me. While I’ve built my career on helping older adults and their families connect to needed education and resources, my connection to the aging and care process goes much deeper.

Some of my earliest childhood memories are of my own multi-generational family living together in one home. I was 4 or 5 when my grandmother moved into our home to help care for my sisters and I while our parents worked. Soon after, her father and grandfather moved in as well. We had 5 generations living under one roof! That was a beautifully chaotic adventure and knowing what I know now, I have so much respect for what my parents and grandmother did.

Fast forward to age 24. Newly married and pregnant with our first child, I spent several months with my in-laws to help care for my husband’s grandmother who had Alzheimer’s. Fast forward again to about 2009 – Wes and I have two teenagers about to head to college and his mother is diagnosed with cancer. Several years later, my mother is diagnosed with cancer. Several years after that Wes’ stepdad is diagnosed with Alzheimer’s disease and his father is suffering from severe dementia. You can see where this is going right? For the better part of the last 10 years we have been the caregivers. We see it as an honor and privilege to have been able to do that for our parents.

The key to navigating our later years is being proactive about gathering information before we get there and staying engaged once we do. To be sage is to be wise. There is wisdom in taking the time to ask questions, seek solutions and know your options before the need arises.

Each week we will discuss relevant topics of aging with experts who can help us to understand and be better prepared for aging. We’ll also introduce you to some Sage Agers who are totally owning their journeys through life. No topic will be off limits and we will deliver open and honest conversation meant to educate and empower our listeners. Each episode will also be available in video and blog formats.

Whether you are proactively seeking to broaden your own knowledge, a caregiver for a loved one or a professional working in the aging care industry, this podcast is for you. We hope you will join us as we explore and celebrate Sage Aging.