Sometimes Florida’s Elderly Need to Be Guarded from Their Guardians
By: Barry E. Haimo, Esq.
September 8, 2015
Few would refer to Florida’s guardianship system as “perfect.”
In fact, many would use the term “flawed” or even “corrupt.” Florida’s imperfect guardianship system has earned countrywide criticism over the last year, as guardianship survivors emerge with frightening tales and advocates push for reform.
Guardianship is a legal process in Florida where a guardian is appointed to take charge of the medical, financial, and legal decisions of a person who is incapacitated. A person may be deemed incapacitated if the courts determine that he or she lacks the capacity to make decisions about his or her health, safety, and property themselves. It’s generally reserved for people who haven’t executed proper estate planning documents for this contingency.
Guardianship was created to protect helpless older citizens. However, the framework of the current system allows for abuse, exploitation, and neglect, and instances of individuals being victimized by their court-appointed guardians are common.
Sadly, Grayson Putney’s guardianship horror story is just one of many.
Abused, Neglected and Stripped of Basic Human Rights
Grayson Putney would happily tell anyone who would listen about how, as a young man, he once bicycled down South America with a pup tent and banjo strapped across his back.
“The ceviche along the Peruvian coast is to die for,” he’d reminisce. “And you work up quite an appetite struggling up those mountains.”
Grayson had lived quite an active life—his ambitious bicycle trip across South America was hardly out of character. The spry Florida-native had run three marathons, competed in an Iron Man, and hiked the Appalachian Trail. Up until his knees began to give way after he turned 73, Grayson began every day with a six-mile jog and ended with an evening bicycle ride.
When he wasn’t hiking up mountains or kayaking down rapids, Grayson kept busy raising four sons with his wife, Jenny. He taught his boys to appreciate the outdoors and physical fitness. He also encouraged them to strengthen their minds through reading and a dedication to academics.
Grayson’s sons never questioned their father’s ability to care for himself, even after their mother passed away and the aging man was left on his own. At the age of 89, Grayson remained sharp, strong, and willful as ever.
That’s why it came as a surprise when the family learned that Grayson had ended up in the hospital after falling on the stairs outside his house. They were even more surprised to hear that the court had declared him incapacitated, and appointed a stranger to act as his guardian to make his financial, medical, and legal decisions for him.
One of Grayson’s friends had petitioned for the guardianship, insisting that Grayson had become paranoid in his old age, and was no longer mentally or physically fit enough to care for his large Davie, Florida home.
Once the guardianship was in place, all of Grayson’s life decisions—from what groceries to buy to how to spend his money—were placed under his guardian’s control. Shortly after being assigned, Grayson’s guardian even had Florida courts remove his right to drive, claiming that Grayson’s aging mind and eyes made him a danger to the roadways.
Grayson’s sons contested the guardianship, arguing that it was unnecessarily restrictive. They believed that Grayson’s guardian was selling his property needlessly, and had uncovered invoices charged to Grayson’s estate that upset them—everything from legal fees to bills for opening mail. They felt their father was being kept in isolation, and being unfairly denied his human rights to make his own decisions, spend his own money, and do the activities he enjoyed.
After a long, complicated legal battle, Grayson and his sons were able to fight back against the guardianship and have it removed. However, some of the damage could not be undone—much of Grayson’s property had been sold off, and he had lost a good chunk of his life to the control of a stranger.
Alternatives to Guardianship in Florida
In certain situations, it may become necessary to set up a guardianship for a loved one who cannot care or make decisions for themselves. But because—as Grayson experienced—guardianship can be incredibly restrictive to personal freedoms, rights, and dignity, it should only be relied on as an absolute final resort. This is especially true knowing you have the power to designate your desired fiduciaries in your estate planning documents.
If you are concerned about the health, safety, and well-being of a family member or loved one, talk to a guardianship administration attorney. Your lawyer may be able to suggest effective alternatives to setting up a guardianship based on your unique circumstances. For instance, you may execute a power of attorney to authorize a trusted individual to make financial or legal decisions on your loved one’s behalf. Another option is to set up a trust that authorizes a trustee to care for property, assets, and affairs controlled by the trustee, whom you can select. Alternatively, a protective representative could be designated to handle health and financial decisions in a less restrictive way.
To determine the best option for your family, consult with an estate lawyer who can help you understand your options and work with you to devise a strategy to protect your loved ones’ health, finances, and well-being.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
YOU ARE NOT OUR CLIENT UNLESS WE EXECUTE A WRITTEN AGREEMENT TO THAT EFFECT. MOREOVER, THE INFORMATION CONTAINED HEREIN IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. EACH SITUATION IS HIGHLY FACT SPECIFIC AND EXCEPTIONS OFTEN EXIST TO GENERAL RULES. DO NOT RELY ON THIS INFORMATION, AS A CONSULTATION TO UNDERSTAND THE FACTS AND THE CLIENT’S NEEDS AND GOALS IS NECESSARY. ULTIMATELY WE MUST BE RETAINED TO PROVIDE LEGAL ADVICE AND REPRESENTATION. THIS INFORMATION IS PROVIDED AS A COURTESY AND, ACCORDINGLY, DOES NOT CONSTITUTE LEGAL ADVICE.