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    Elder Law Florida Law

    Protection for the Vulnerable Among Us: The Role of Guardians

    Gabrielle Bush
    By Gabrielle Bush   |   Executive Online Editor

    What happens when we can no longer care for ourselves?  Whose responsibility is to take care of us? Often when a person can no longer care for him or herself, a court appoints what is known as a guardian to do so for them. In Florida, guardians are individuals whose purpose is to act on behalf of their wards regarding their person and property. Under the Florida Statute 744.1012, the purpose of guardianship law is to, in part, ensure that “the least restrictive form of guardianship” occurs before the court appoints a plenary guardian. A plenary guardian is one that has the power to exercise “all delegable legal rights and powers of the ward.” This year Netflix released a movie called “I Care a Lot.” In this movie, a professional guardian was placed in charge of an elderly woman who had been diagnosed as mentally incompetent. As a professional guardian, the appointed woman had several wards, all of whom she exploited, including the woman who had most recently been placed under her care. This professional guardian had control over making determinations related to where the ward lived, who she could and could not communicate with, and how the ward’s assets were managed. While this movie is over dramatized and sheds a bad light on guardians, it is important to know that similar occurrences like this do happen on a fairly frequent basis. There have been cases where the ward’s guardian, whether professional or not, has exploited the ward by selling the ward’s assets and pocketing the money and/or by simply transferring money from the ward’s account to his or her own.

    Often times when individuals cannot care for themselves because of their age or due to medical reasons, they are likely to be preyed on by those who want to take advantage of these individuals’ weakened state. However, there are laws set in place to help prevent these types of occurrences from taking place. A guardian has several responsibilities other than being in charge of a ward. A guardian is required to attend trainings in order to adequately perform their duties. In addition to being a ward’s guardian, the guardian is required to annually submit documentation regarding the management of the ward’s assets. A guardian is also to take into consideration the ward’s requests, so long as they are in the best interest of the ward. However, I believe that the greatest protection the law provides wards is the ability to have their rights restored if and when they are found to be competent to do so.

    In attempting to prevent the abuse, neglect, and exploitation of vulnerable individuals by their guardians, the above-mentioned requirements serve as checks in order to oversee the guardian’s activities. In this regard the law is proactive. However, there are situations where the law is also reactive in responding to instances of abuse, neglect, and exploitation of the vulnerable by their guardians. The law is reactive in the sense that if a guardian is found to have abused their power, they can find themselves facing felony charges for their actions.

    While there are protections set in place to prevent the exploitation of our vulnerable population, it is important to also understand that there are those who do exploit the elderly and at times continue to do so undetected.

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