Probate and guardianship



"Probate" comes from a latin word meaning to examine, prove, and show to be real or true. This is essentially the purpose of the probate courts - to prove that the deceased person's will is valid and that their wishes are fulfilled (and creditors satisfied, when applicable). People either pass away intestate (without a Last Will and Testament) or testate (without such a Will). Either way a deceased person's estate must be probated. The Florida Probate Code sets forth the procedure required to prove that a Will is valid or; if no Will, sets forth the priorities of how to distribute the property owned by the estate of the deceased person (i.e. who gets the deceased person's stuff). Administrating a Will in probate involves appointing a personal representative, creating an inventory of the estates probatable assets (not all assets must be probated, e.g. the homestead, pay-on-death bank accounts, jointly owned property with right of survivorship, etc...). The probate process can be lengthy and time consuming. Some simple estate planning can greatly minimize or altogether avoid probate. 


Elder Law attorneys and Medicaid Planning lawyers (essentially incapacity planning lawyers) are very much interested in avoiding guardianship, if at all possible in an estate-planning and medicaid-planning context. We prefer a well-drafted enhanced durable power of attorney, which is the voluntary delegation of one's rights. This is especially useful once an elder cannot act for themselves (becomes incapacitated). Guardianship, on the other hand, involves the involuntary delegation of one's rights when they are incapacitated or unable to make decisions for themselves. Guardianship is literally the act of a Court coming in and taking away one's rights.

We will use guardianship when something needs to be done but documents are insufficient to accomplish the goal, or we are concerned that the person making decisions on behalf of the elder is not doing so in their best interest. Herein, lays the only advantage to a guardianship proceeding - that being court oversight.

When court gets petition for guardianship, it appoints a committee who writes a report, suggesting degree of capacity of the AIP (alleged incapacitated person) with suggestions. Court will appoint an attorney (not me, this elder law firm only represents the petitioner seeking guardianship). That attorneys job is to make sure that everything is legit. If uncontested, the guardianship process takes a short period of time.

The Mini Mental State Exam (MMSE) is a test used by the guardianship committee mental health professionals to determine the AIP's level of capacity, whether they are alert and oriented.

If a person is obviously completely and totally incapacitated when their family comes seeking medicaid-planning services, and the proper incapacity planning documents were not previously executed while the elder had capacity, the Guardianship process will be a necessary evil. As discussed above, if the elder is really concerned about their designated agents misappropriating their funds and available resources, sometimes a voluntary guardianship is instituted to have the value of court oversight.

Professional Guardians and Family Guardians should consult with an Elder Care Attorney to discuss how best to preserve the incapacitated person's assets so they can receive the best quality of care possible. Read more about how Medicaid planning works in Guardianship here.

Elder Law Resources

Summary of Florida Probate Code

Summary of Florida Trust Code

Summary of Florida Guardianship Code

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