From Associate Attorney Wendy Diaz…
Today, I’d like to talk about guardianships and conservatorships.
Guardianships happen when someone, either an adult or a minor, needs assistance in taking care of their financial means.
Guardianships are appointed by the court, and the person that is being taken care of is called a ward. We have a ward and a guardian.
When a minor is a ward, it is generally because one of two things are going on.
The first one is that their parents have passed away and there is an estate issue going on. The court appoints someone to insure that the estate is taken care of appropriately.
Another way a minor is a ward for a guardianship is when they are receiving proceeds from a lawsuit and the amount of money exceeds what the statute allows.
For an adult guardianship, it generally happens when the adult can’t take care of him or herself due to some sort of incapacity.
Guardianships are generally done as a last resort because the court wants to make sure that all the other options have been taken care of, because they are least restrictive. Some of those options can be a power of attorney or a healthcare proxy.
Guardianships happen in one of two ways – they can be voluntary or involuntary.
A voluntary guardianship is when the adult has some capacity, but not full capacity to be able to take care of him or herself, and they ask the court to appoint someone to take care of the things that he or she can’t take care of.
An involuntary guardianship is when the ward cannot take care of him or herself and a family member steps in and asks the court to appoint someone in order to take care of all the aspects of property, legal and health.
There are also limited guardianships and plenary guardianships (or absolute).
A limited guardianship is when the court finds that the ward is able to do some things, but not everything for self-care, and the court doesn’t have to have pre-written instructions for day-to-day activities.
A plenary, or an absolute, guardianship is where all of the legal duties of the ward are given to the guardian, and then the guardian takes care of all aspects of property, legal and healthcare, because the ward cannot take care of him or herself.
All guardianships, whether it’s for an adult or a minor, are covered under Chapter 7 of the Florida Statutes.
The situation with Britney Spears, right now, is a guardianship. I know a lot of the things in the news call this a conservatorship. She is in California; we are in Florida. It could be what they refer to as a guardianship over there. They just refer to it as a conservatorship.
A conservatorship, in the State of Florida, is similar to what Carole Baskin did. Conservatorships are when someone is taking care of the estate for someone who is absent, such as someone who is presumed dead, missing in action, mentally deranged or has some kind of mental illness where they cannot take care of him or herself.
Under Florida law, if you’re a member of the armed services, in order for a family member to ask for conservatorship, they would have to prove that the service member is missing in action, captured by the enemy, or they are detained or besieged in a neutral country.
In order for the part to show the court why they should be the conservator, they have to show that, if the person is deceased, they would have an estate interest, they would need financial support from the absentee and they meet the legal definition of an absentee in Chapter 747 in Florida Statutes.
They also have to show a description of the circumstances where the absentee person went missing. For example, Carole Baskin had to show the court how or why her husband may have gone missing and the circumstances of why he may have gone missing.
Secondly, a potential conservator would have to show the reasons why the petitioner should be appointed, whether there’s a relationship or whether it’s a familial relationship or a business relationship.
Lastly, the person would have to show all of the absentee’s property that would be in estate, anything that would go to probate, the potential conservator would have to show the court everything that the absentee owns and everything they would like to take care of until the absentee shows up or until the court presumes the person to be dead.
In both guardianships and conservatorships, a guardian ad litem is appointed.
A guardian ad litem tends to be an attorney (doesn’t have to be, but in most places is), and that person’s sole job is to make sure that the interests of the ward are met. They don’t necessarily represent that person as their attorney, but they do make sure that their interests are protected and taken care of.
In Britney Spears’ situation, the guardian in this case is her father. She’s wanting to remove her father. In Carole Baskin’s case, she did become the guardian of that conservatorship, and was able to retain the property of the Cat Rescue that she and her husband owned at the time.
So, that’s the difference between guardianships and conservatorships.
Just as a brief recap, for guardianships, the person is here. It could be a minor or an adult. They are just somewhat incapacitated and they just need some help. For a conservatorship, the person is just deemed missing, and family and friends want to make sure that their affairs, in regards to property and legal, are taken care of.