What is the Difference Between Conservatorship and Guardianship in Florida?
During your lifetime, you may be faced with the challenge of caring for a parent or loved one with deteriorating mental capacity. You could also face your own declining mental abilities if you are diagnosed with Alzheimer’s or dementia later in life. In either case, there may come a time when guardianship needs to be considered.
Many people mistakenly believe that the terms conservatorship and guardianship can be used interchangeably; or that they are the same legal proceeding. Though these two terms are similar, they describe two different legal processes under Florida law.
If you are unsure about which legal proceeding to choose, our estate planning attorney, Elaine McGinnis, is here to help you decide.
Guardianship
In Florida, while guardianship can refer to the care of a minor child if their parents pass away or lose parental rights, it can also grant a legal guardian the right to make financial and medical decisions on the behalf of an incapacitated individual.
If granted control, the guardian may be involved with the following:
Managing assets
Managing a Special Needs Trust
Paying bills
Filing taxes
Managing benefits such as Social Security Income or Medicaid
Managing medical decisions
Another type of guardianship in Florida, guardian advocacy, is for individuals with a developmental disability.
Conservatorship
In the majority of jurisdictions, a conservator is a person who is exclusively given authority over an incapable adult's financial decisions. A conservator is a person that the court appoints to handle the affairs of an "absentee" in Florida, whether they are thought dead or have vanished.
The individual in need of a Guardian or Conservator is often referred to as a “Ward” or an “Incapacitated Person.”
Guardianship Vs. Conservatorship
If a family member has lost the ability to make decisions for themselves due to illness or physical injury, you may be able to petition the state of Florida for guardianship.
If your petition is approved and you are named guardian, you will take on the responsibilities for managing the incapacitated person's affairs (financial, medical, etc.).
A conservator is appointed to manage the affairs of "absentees" and has all the authority and rights of a guardian under Florida Code 747.035. However, guardians are chosen to manage the legal and financial affairs of disabled individuals.
You should think about establishing a conservatorship to take care of your family member's financial and legal affairs if they have vanished or gone missing mysteriously.
Who is an Absentee?
According to Florida law, an absentee is any Florida resident—or anybody who owns property there—who is believed to be deceased, has vanished, or has gone missing as a result of amnesia, mental instability, or another mental condition.
Under Florida law, absentees include members of the U.S. Armed Forces who:
Are reported missing in action
Have been captured by the enemy
Have been detained or trapped in a neutral country
Guardianships in Florida
In Florida, an adult who voluntarily files for the appointment of a guardian but is incapable of managing his or her estate despite being mentally competent is placed under a voluntary guardianship. The prevalence of senior individuals in the United States receiving an Alzheimer's or other dementia diagnosis has led to an increase in voluntary guardianships.
Florida recognizes both voluntary and involuntary guardianships.
Involuntary guardianships involve petitioning a court for the right to be appointed the guardian of someone who is incapacitated.
Florida recognizes three types of guardianship:
Guardian of the Person
As guardian of an incapacitated person, you would be legally authorized to make decisions relating to daily tasks and personal matters involving:
Where the Ward will live
What doctor will treat the Ward
Whether or not the Ward is allowed to drive
Who may have contact with the Ward
Guardian of the Estate
As a guardian of an estate, you would be legally authorized to make decisions relating to the finances and estate of the Ward including:
Whether to sell an asset
Which bills to pay
Whether to purchase stocks or other securities
Filing taxes
And more
Plenary Guardianship
A plenary guardianship is awarded when the Ward cannot make any financial or personal decisions. As a plenary guardian, you would be in charge of every decision for the Ward.
Least Restrictive Standard
Guardianship, by definition, is the most restrictive course of action because it denies a person the freedom to make their own decisions. In light of this, a judge may set limits on the power given to a guardian.
If the court decides that a Ward is capable of making some decisions, but not all, they will appoint a guardian to a limited guardianship role.
Consult with a Tampa Guardianship Lawyer
If you are considering petitioning the court for guardianship or have recently been appointed a guardian, you need to understand all your rights and responsibilities. Managing the estate and financial matters of an incapacitated person can be complicated, and it is important to have a knowledgeable attorney on your side.
Consult with our compassionate estate planning lawyer, Elaine McGinnis P.A. about Florida guardianships today—(813)851-3380.