The Guardianship of Adult Children
In my experience as an estate planning attorney, I have researched with many clients whether they should seek guardianship of a parent who is ill, elderly or losing mental capacity. My “50-something” clients have parents that are at the age where guardianship matters become important.
However, there is another category of guardianship that is seldom discussed but is extremely relevant in our day and age — Guardianship that is warranted because the decisions of an adult child are impaired. The elderly, minors and adult children can all be protected through guardianship agreements when they are no longer able to make their own responsible decisions on their own.
This type of guardianship proceeding may become necessary if a young person acquires a large sum of money over a short period of time, such as through inheritance or sudden celebrity. Individuals who experience this type of acquisition of assets may become irresponsible with money or may even encounter addiction or dependency issues. Helping those who fall into these unfortunate circumstances both emotionally and mentally is imperative, but legally protecting the individual’s estate is essential as well.
Florida law requires using the least restrictive alternative to protect someone incapable of making decisions for himself/herself. At a minimum, the basic estate planning documents should be executed such as a durable power of attorney and living will. However, in extreme situations, it has been determined that an adult guardianship is in the best interest of the ward. Taking away constitutional rights of an individual is a serious undertaking. Determining whether their condition warrants taking away their personal liberties is a critical question. For this reason, those seeking to place someone under involuntary guardianship must first produce medical evidence to support the action.
As you can imagine, the guardianship proceeding of a young adult may become adversarial. It takes a humble and realistic individual to offer up their freedom to a guardian. Although a voluntary guardianship proceeding is possible, it is not the norm. When the proceeding is adversarial, very often family relations may be threatened and cause long-term disarray between potential wards and their parents. It is difficult to place adults under guardianship against their will, and courts are very hesitant to extract the freedoms and liberties of individuals.
Guardianship is a last resort process and it is always necessary to explore all available options. If you have questions about a guardianship proceeding, be sure to contact an estate planning attorney who can assist you in making decisions that will benefit all who are involved.
Authored by: Joseph T Zebrowski, Esq