In my previous post, I shared the emotional journey of deciding to pursue guardianship for my mother. In this post, I’ll break down the next step—how we moved forward with that decision and the legal process that followed. The next post will focus on what happens after guardianship is obtained, including the rights retained by the ward and the responsibilities of a guardian.
Making the decision to seek guardianship for my mother was not something I took lightly. Taking away a parent’s autonomy is heartbreaking. But my siblings and I made a promise to our dad before he passed away that we would always take care of our mother, and in the end, we knew this was the best and safest option for her.
Disclaimer:
I am not a lawyer or health care professional. This blog post is based on my personal experience with obtaining guardianship of my mother in Brevard County, Florida. Laws vary from state to state, so I highly recommend consulting with legal professionals in your area to ensure you’re following the proper procedures for your situation. I’m sharing my story to provide insights that might help others facing similar challenges.
Recap: Why We Chose Guardianship
To recap, my mother became ill with Stage 4 lung cancer that metastasized to her brain. She began making irrational and dangerous decisions regarding her health and finances. Without any estate planning documents in place, we were lost. No one on the medical team, care coordinators, or social workers could advise us on the best course of action. So, I took it upon myself to research advocacy groups for the elderly in Brevard County.
Unfortunately, they couldn’t provide direct help but referred me to a list of reputable attorneys specializing in Elderly Law. After making some calls, we selected a law firm, and within days, I had a conference call with our potential lawyer, Paul, and my brother, Ed. Paul listened to our story and believed we had a solid case for guardianship.
Starting the Guardianship Process
After consulting with Paul, he advised us to first petition for Emergency Temporary Guardianship (ETG), which is a quicker process. If that wasn’t successful, we would then move forward with a petition for Plenary Guardianship, which grants broader and more permanent authority over the ward.
After discussing it with my two brothers, I volunteered to be my mother’s court-appointed guardian, should the judge approve. I filled out the law firm’s intake form, and we agreed to a flat fee for the case.
1. Completing the Necessary Paperwork
The paperwork process was extensive but necessary to demonstrate to the court that I was capable of handling the responsibilities of a guardian. Here’s what it involved:
- Oath of Guardian: I signed and notarized a document stating that I would perform my duties in accordance with the law.
- Application for Appointment: This form required me to formally apply as the guardian. This included agreeing to background checks and credit history reports.
- Petitions: I signed three key petitions that were filed with the court:
- Petition for Appointment of Emergency Temporary Guardianship of a Person and Property
- Petition for Appointment of Plenary Guardianship
- Petition to Determine Incapacity
Once filed, the case was given a number, and the court ordered an examining committee and an attorney to represent my mother.
2. Emergency Temporary Guardianship (ETG)
An Emergency Temporary Guardianship (ETG) allows someone to quickly take over decision-making for a person who may be in immediate danger or making harmful decisions. However, it is harder to obtain than Plenary Guardianship due to the urgency involved. In our case, despite presenting our concerns, my mother’s lawyer argued that she still had capacity, and the judge ultimately denied our ETG request.
Next Steps: Plenary Guardianship
Although we didn’t receive ETG, we continued the process for Plenary Guardianship, which would grant me full authority over my mother’s medical, financial, and personal decisions if she were deemed incapacitated. This part of the process involved the following:
- Examination Committee: The court-appointed an examining committee consisting of a registered nurse, a medical doctor, and a psychologist. Their job was to assess whether my mother was incapacitated. For Plenary Guardianship to be granted, at least two out of three committee members needed to recommend it.
- Two members recommended Plenary Guardianship, while the third recommended limited guardianship, allowing my mother to retain the right to vote.
- Consent from Siblings: Before the final court hearing, my brothers signed a consent form agreeing to appoint me as the guardian.
- The Court Hearing: Since I live 144 miles away, the court arranged a virtual hearing with the judge, my lawyer, my mother’s lawyer, and myself. After presenting all the documents and evidence, the judge appointed me as my mother’s Plenary Guardian.
Understanding Guardianship Responsibilities
Once appointed as a Plenary Guardian, I took on a massive responsibility. According to Disability Rights Florida, a guardian has the power to make decisions for the ward regarding:
- Entering into contracts
- Applying for government benefits
- Managing property
- Making medical and mental health treatment decisions
- Determining where the ward will live
- Controlling aspects of social life, including who the ward can visit and talk to
However, the ward loses several rights, including the ability to:
- Marry
- Vote (unless otherwise determined)
- Apply for government benefits on their own
- Hold a driver’s license
- Travel
- Seek or retain employment
Given these powers, guardians must have unquestionable integrity and be fully committed to protecting the well-being of the ward. There are laws and advocacy groups in place to ensure that the rights of people under guardianship are protected, and it’s essential to stay organized and dedicated to fulfilling these duties.
Final Thoughts
Obtaining guardianship for a parent is not an easy process. It’s emotionally taxing and involves navigating a complex legal system. However, for families in a similar situation, it can be the best way to ensure the safety and care of a loved one. If you’re in a similar position, I recommend seeking legal guidance early and staying organized throughout the process.
Stay tuned for my next post, where I’ll discuss the responsibilities of a guardian after being appointed, including what to expect and how to stay compliant with the court’s requirements.
References:
- Disability Rights Florida: Types of Guardianship
