Guardianships FAQ

A special needs trust is a set of instructions to a trustee that says to hold this money for a person who is disabled under Social Security’s definition of disability. There are two different kinds of special needs trusts.

There is what’s called a first-party special needs trust, where you’re taking the money of the individual who is disabled, and you are putting it into a special needs trust for their benefit, to purchase supplemental needs that their government benefits don’t already cover. With a first-party special needs trust, because it was the money of the disabled individual, there is a payback provision that is required. So the money is in trust. It’s for the disabled person’s benefit during their lifetime, over and above the government benefits that they receive. On their death, if there is money left in that trust, Medicaid does have a lien on it. So the amount of money that Medicaid has paid out for their benefit over their lifetime has to be paid back. If there’s any money after that, it can go to loved ones. That’s only in a first-party special needs trust.

A third-party special needs trust is different. That’s when you take the money from someone who is not disabled, a parent, a grandparent, an aunt, and an uncle. They want to put money into a trust for someone who is disabled. So they take their own money. They put it in trust for the disabled individual’s benefit, but it’s never given to the disabled individual directly. So the money is held by a trustee. The trustee can purchase additional items for the person who is disabled above and beyond what they get from their government benefits. And it could be very broad. They can purchase a home for them. They can purchase trips for them, additional therapies, any kind of luxury items. All those things can be purchased. On the disabled individual’s death, there is no payback provision, because it was never the disabled person’s money. So Medicaid doesn’t get paid back anything that they’ve paid out, and whatever money is left can be distributed under the terms of the trust. So it could go to another grandchild. It could go to another sibling. Anything like that. So third-party trusts are a little bit more flexible. But sometimes a first-party special needs trust is required if the disabled individual receives an inheritance, or wins a settlement. Then we have to do something to preserve those benefits, and a first-party special needs trust is the right way to go. So it all depends on your situation, what your goals are, whose money we’re putting in the trust, as to whether or not you’re going to need a first-party special needs trust, or a third party special needs trust.

A full guardianship is a two-step process in the state of Florida. A petition is filed to determine if someone has the capacity or not. The judge then appoints an examining committee to examine the individual and determine whether or not they have capacity. They will do a physical exam and a mental exam.

If the person does not have the capacity (and it can be in all areas or in limited areas):

• Can they determine their residence?
• Can they decide their health care decisions?
• Can they manage their money?

The examining committee will tell the court in each of these areas, ‘The person can or cannot make decisions.’ If they cannot, the court will remove the person’s rights in those areas and determine them incapacitated. If they are incapacitated, and they’ve never named a power of attorney or a healthcare surrogate to manage their affairs, then the court will appoint a guardian to manage their affairs. In Florida, a guardian has to be over the age of 18, either related to the individual by blood or live in the state of Florida, and never have been convicted of a felony. If all of those are met, then the person will be named a guardian, and they will manage the affairs of the person who’s incapacitated.”

A guardian advocacy is a special kind of guardianship which the legislature has said you can do if your individual has one of five developmental disabilities: spina bifida, cerebral palsy, Prader-Willi syndrome, autism, and mental retardation. If you have one of those five developmental disabilities, you’re going to qualify for a guardian advocacy. What will happen is there will still be a court hearing. You will go in and prove to the judge that your loved one has that one of those diagnoses of one of those five developmental disabilities and that because of that diagnosis they are impaired and cannot make decisions in certain areas. Those areas could include personal decisions such as residence, social, travel, education, employment, medical. It can also include financial decisions: the right to contract, the right to manage money, to buy property, all of those kinds of things. You have to offer testimony to the court showing that the individual, because of that developmental disability, cannot manage his affairs in those areas. If the court finds by clear and convincing evidence that they cannot, they will appoint a guardian advocate to manage the affairs of the person with the developmental disability.

To be a guardian advocate, you have to be over the age of 18, either be related to the individual by blood or live in the state of Florida, and you have to have never been convicted of a felony. If you qualify, you’ll be appointed guardian advocate to make decisions for that person in those specific areas. Each year, you’ll file a plan with the court, and you’ll also file an accounting if there’s any money involved so that the court can monitor that you are indeed taking care of this individual.

A First-Party Special Needs Trust is where you’re taking the money of the individual who is disabled, and you are putting it into a special needs trust for their benefit to purchase supplemental needs that their government benefits don’t already cover. With a First-Party Special Needs Trust, because it was the money of the disabled individual, there is a payback provision that is required. So the money is in trust. It’s for the disabled person’s benefit during their lifetime over and above the government benefits that they receive. On their death, if there is money left in that trust, Medicaid does have a lien on it so the amount of money that Medicaid has paid out for their benefit over their lifetime has to be paid back. If there’s any money after that, it can go to loved ones. That’s only in a First-Party Special Needs Trust.

A guardianship definitely can be temporary. A lot of times, what happens is someone may suffer from a brain injury and they’re going through all kinds of rehabilitation. They cannot manage their affairs at this point in time, so they’re determined incapacitated, their rights are removed, and a guardian is appointed to manage their affairs. However, guardianship is always reversible. There is a process called “restoration.” If a physician will sign an affidavit or come into court and testify that you have now the capacity to manage your affairs, your rights can be restored and the guardianship removed. Just because someone needs a guardianship today, it could last for the rest of their life if they have Alzheimer’s or some kind of disease that is going to continue, or it could just be a temporary matter until someone is better and can then manage their own affairs again.

Shannon Miller, ESQ, of Miller Elder Law Firm presented at the Florida House of Representatives Civil Judiciary Committee in Tallahassee on Jan 7, 2015. As the President of the Academy of Florida Elder Law Attorneys, she participated in the subcommittee’s workshop to improve Florida’s guardianship law.

Click here to view the video (Shannon’s presentation runs from 32:55 to 41:35).

Chairwoman Kathleen Passidomo called the meeting to order with a review of Florida’s current law stating that although our law is very comprehensive, it is not working as effectively as it was intended. Her goal was to provide a forum for the public to state ways to solve the problem before an amendment is drafted.

Primary goals of the State are to:

1. prevent abuse of the ward in the guardianship.
2. punish the abuses.
3. provide oversight to evaluate guardianships.
4. provide guardians with adequate credentials.
5. consistently enforce the law.
6. minimize intrusiveness for the ward.

Ms. Miller discussed the need for guardianship laws with amendments to protect wards in situations of exploitation, both physical and property. “Although attorneys would rather avoid guardianships because they are costly and psychologically painful for the ward, we need emergency temporary guardianships to remove the ward from harm. We work hard to educate the public to complete advance directives and durable power of attorney documents to avoid guardianships” explains Miller.

Our district has a solid law regarding how guardianships are set up and monitored and Shannon Miller is working to create consistency in the law around the State of Florida.

A New, More Protective Guardianship Law

Several Elder Law Attorneys from around the state of Florida, including Shannon Miller, ESQ, Miller Elder Law Firm, were instrumental in the passing of this legislation that went into effect in Florida on July 1, 2015.  The overhaul was designed to better protect our most vulnerable citizens, aging adults.

The law:

• establishes a formal system for appointing court monitors to oversee guardianships and requires those facing emergency temporary guardianship to receive prior warning, among other provisions.  Determining whether a person is mentally incapacitated for guardianship can take weeks. But if someone claims that an individual faces immediate physical or financial harm, an emergency temporary guardian can be appointed within days, with individuals often removed from their homes before having a full court hearing.
• makes it more difficult to suspend someone’s power of attorney during the guardianship process, attempts to limit the fees associated with guardianships and makes clear a guardian’s responsibility to act in the ward’s interest and keep accurate records.
• establishes for-profit corporate guardians and requires them to have a bond and ENA insurance.

Recommendations from the Academy of Florida Elder Law Attorneys:

The new guardianship law went into effect on July 1, 2015. There are things we can all do now to protect our seniors and even help them to avoid guardianship:

• Encourage the senior to create a Living Will or Health Care Surrogate, and a Durable Power of Attorney, helping make sure medical and financial wishes are followed if incapacitated.
• Have discussions with family members about the senior’s health and finances, reducing chances for family disagreements.
• Make sure the senior’s financial affairs are in order, cutting down on time and expense if guardianship is eventually needed.
• Follow the above suggestions BEFORE the senior becomes incapacitated.

The Patience and Planning if Alzheimer’s Disease One of our clients at Miller Elder Law Firm, Dr. Curt DeGroff, has been caring for his mother for several years now since her diagnosis with Alzheimer’s disease.  Even after a lifetime of loving relationships it has been extremely challenging for Dr. DeGroff, along with his wife and siblings, to help provide and find the best care possible for his mother. He shares a practical, no nonsense roadmap for enduring one of the most difficult challenges a person may be confronted with, providing and coordinating caregiving for a loved one with dementia or Alzheimer’s Disease.  The ability to establish a new normal for yourself and your loved one, knowing relationships and situations will never be the same, will allow you to work toward acceptance and a routine that works for everyone.

  2. Find a Geriatric medical team for your loved one who understand near end of life issues and decisions. Find a medical team with a:

Legal issues that affect people as they age and people with special needs are growing in number. Our laws and regulations are becoming more complex, and each state has different laws. Elder and Special Needs Law attorneys bring to their practice a knowledge of their clients that allows them and their staff to ignore the myths relating to aging and the competence of seniors and people with disabilities. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. They are tied into a system of social workers, geriatric care managers, psychologists, and other professionals who may be of assistance to you or your loved one. Elder and Special Needs Law encompasses many different fields of law.  Here are some important specialty areas:  estate planning, durable power of attorney, wills and trusts, living wills, probate, nursing home issues, guardianship, Medicare planning, and elder abuse and fraud.

Most attorneys do not specialize in every one of these areas. So when an attorney says he or she practices Elder and Special Needs Law, find out which of these matters the attorney handles. You will want to hire the attorney who regularly handles matters in the area of law of concern to your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law.

Finding an Elder And Special Needs Law Attorney

Before making the effort, step back a moment and try to determine whether you actually have a legal problem in which an attorney needs to be involved. If you’re not sure, ask your clergy, your financial advisor, a social worker, or a trusted friend to help you decide whether this is a legal issue rather than a medical or a social services issue. There are many places to find an attorney in your city or state who specializes in elder and special needs law. Check with local agencies to obtain good quality local referrals such as the Alzheimer’s Association, AARP, Area Agency (or Council) on Aging, Children of Aging Parents, State or local bar association, AND National Academy of Elder Law Attorneys.  If you know any attorneys, ask them for a referral to an Elder and Special Needs Law attorney. An attorney is in a good position to know who handles such issues and whether that person is a good attorney.

Ask Questions First

Ask lots of questions before selecting an Elder and Special Needs Law attorney. Start with the initial phone call with the receptionist:

• How long has the attorney been in practice?
• Does his or her practice emphasize a particular area of law?
• How long has he or she been in this field?
• What percentage of his or her practice is devoted to Elder and Special Needs Law?
• Is there a fee for the first consultation, and if so how much is it?
• Given the nature of your problem, what information should you bring with you to the initial consultation?

Once You Have Found an Elder and Special Needs Law Attorney

When you have found an appropriate attorney, make an appointment to see him or her. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance, so be sure to organize and bring all the information pertinent to your situation. After you have explained your situation, ask:

• What will it take to resolve it?
• Are there any alternate courses of action
• What are the advantages and disadvantages of each possibility?
• How many attorneys are in the office?
• Who will handle your case?
• Has that attorney handled matters of this kind in the past?
• If a trial may be involved, does the attorney do trial work? If not, who does the trial work? If so, how many trials has he or she handled?
• Is that attorney a member of the local bar association, a health advocacy committee, or trust and estates committee?
• How are fees computed?
• What is the estimate of the cost to resolve your problem and how long will it take?

Discussing Fees

Some attorneys bill weekly, some bill monthly, some bill upon completion of work. Ask about these matters at the initial conference, so there will be no surprises. If you don’t understand, ask again. It is very important that you feel comfortable in this area. In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for copies, postage, messenger fees, court fees, deposition fees, long-distance telephone calls, and other such costs. The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account and each time the attorney bills you, he or she is paid out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount. In many cases, the total fee will be higher than the retainer.

Get It In Writing

Once you decide to hire the attorney, ask that your arrangement be put in writing. The writing can be a letter or a formal contract. It should spell out what services the attorney will perform for you and what the fee and expense arrangement will be. Make It A Good Experience Use the questions and answers above as a guide not only to the attorney’s qualifications but also as a way of determining whether you can comfortably work with this person. Only if you are satisfied with the attorney you have hired from the very start will you trust him or her to do the best job for you.

About the National Academy of Elder Law Attorneys (NAELA)

This informational brochure is provided as a public service by NAELA and is not intended as legal advice. Such advice should be obtained from a qualified Elder and Special Needs Law attorney. NAELA, founded in 1987, is a national association of Elder and Special Needs Law attorneys devoted to the education and training of attorneys who can meet the needs of seniors and people with special needs, and who advocate for the needs of such individuals. Shannon Miller of Miller Elder Law Firm is a board-certified Elder Law attorney and Past President of the Academy of Florida Elder Law Attorneys, the state chapter of NAELA.