Guardianship Reality: Who’S Looking out for America’S Abandoned, Abused, Neglected Children & Elderly?

By Robert Fertig and Fernando Gutierrez

WHOS LOOKING OUT FOR AMERICA'S ABUSED & NEGLECTED CHILDREN & THE ELDERLY?

The court orders Professional Guardians to make critical decisions; this pragmatic guide explains how to make those decisions. It guides the reader through the process of making bio-ethical healthcare, ethical social and welfare choices, and how to prudently manage client assets, while avoiding conflicts of interest.
Responsibility for making life-and-death decisions for children and the elderly is much more difficult than making individual decisions for oneself.

Nationally, 3.6 million referrals are made to Child Protection Investigators, involving 6.6 million children annually. The U.S. happens to be the worst among developed industrial nations, losing 4-to-7 children every day to parental abuse and neglect.

Florida is the nations grayest state. Nearly 25% of the Sunshine states population are seniors. They should be the nations leader in Eldercare and Childcare laws, standards, and support systems. Are they?

There are many sensationalistic stories about guardianship exploitation and fraud. Guardianship Reality provides a balanced view by two authors who have handled dozens of complex cases annually. The facts are that guardianship is a very honorable profession dedicated to the Best Interests of Children and the Elderly.
Innuendo, accusations, and deceitful news is not limited merely to politics. Co-author, Fernando Gutierrez, has been accused of exploitation, weeks before this book was published. The Truth Shall Set You Free!

If youre not accused of something, youre probably not doing your job. Authors

• Language: English
• Publisher: AuthorHouse
• Release date: Sep 8, 2017
• ISBN: 9781524698263

Robert Fertig

Robert Fertig is the author of, Quicksand, the Beauty and Wonder of Transcendent Truths, a Guide to Universal Truths, the Software Revolution, leading contributor to Waves of Change, co-author of Best Interests of the Children and Engineering Workstations. He is currently an Elder Care Guardian. Miriam A. Fertig is the co-author of Best Interests of the Children, and a major contributor and editor of Consequences. Miriam retired after 40-years of teaching in New Jersey, New York City, Greenwich High School in Greenwich, CT, and the Middle School at St. Paul’s, in Clearwater, FL, where she was voted by her students and peers “Special Teacher” in the 2005 Year Book.  She received The 2007 Endowment Chair for Teacher Excellence for service and professionalism. Miriam earned her B.A. from Hunter College, in NYC, and M.A. from Fairfield University, Fairfield, CT.

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© 2017 Fertig’s Christian Trust, LLC. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 09/07/2017

ISBN: 978-1-5246-9827-0 (sc)

ISBN: 978-1-5246-9825-6 (hc)

ISBN: 978-1-5246-9826-3 (e)

Library of Congress Control Number: 2017910115

Any people depicted in stock imagery provided by Thinkstock are models,

and such images are being used for illustrative purposes only.

Certain stock imagery © Thinkstock.

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

PREAMBLE

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The author’s personal experiences as Eldercare Professional Guardians, and as Guardian ad Litem volunteers for Children forms the foundation for this book. The events and cases described in this work are true. To assure anonymity, individuals discussed are composites and names and characteristics of people, time and places were changed.

This work is partly based on an edited version of the Robert and Miriam Fertig’s publication, Best Interests of the Children, (published in 2014, available from an online bookstore). To provide creditability this work is also partly based on the Florida Professional Training Manual, which was not copyrighted. The original text from both works has been substantially reduced, updated and modified to fit our book objectives. In this work we focus primarily on the all too often overlooked human element.

The authors are not lawyers, and affirm that we are not providing legal advice.

Media critics have disparaged guardians as being profit motivated, such as Dr. Sam Sugar’s sensational claims which are partly true. The authors gave Dr. Sugar the opportunity to critically review our book, but he declined our request. Mr. Larson’s book, Guardians, has more merit. For that reason, we wrote about Preventing Fraud and Exploitation. Florida’s more recent laws and standards, make it much more difficult to steal from elderly patients. There has to be a conspiracy between the guardian, his attorney, and the probate court to rip-off the client’s assets. Nevertheless, fraud and exploitation continues to occur nationwide, as reported by Mr. Larson. See Appendix 4.

Readers should realize that bad apples exist in all professions. There are unscrupulous Guardians and Power of Attorneys who will exploit the elderly. Most Guardians are professionals, who truly care for clients, especially indigent persons who desperately need their skills and services. Guardians and DPOA also respond to urgent calls from facilities and hospitals, late at night, and rush to provide their required support.

A profit motive is normal in healthcare professions. One must realize that guardianship is a business and they have to pay for services, rent and taxes, as well. One must also ask: What would abused and neglected children and the elderly do without guardians? Furthermore, Guardians or POA and their attorneys take on numerous pro bono cases. The authors handled dozens of pro bono cases every year, without any compensation.

Guardians or DPOA healthcare and financial managers will be accused of all kinds of stuff by the client or family. This is especially true when one is advocating for vulnerable children and the elderly, many with symptoms of dementia, and the may also be delusional —it comes with the job. One must avoid situations that can expose you to potential accusations. Use commonsense. Consult with your attorney whenever someone accuses you of anything.

If you’re not accused of something, you’re probably not doing your job.

This work is divided into two parts—Guardianship of the Children, and the Elderly, with candid viewpoints about reality—what actually takes place in everyday guardianship.

CONTENTS

Preamble

Introduction

Principles & Laws

Natural Law:

History Of Guardianship

Reasons For Guardianship

Types Of Guardianship

Guardians Of The Person And Property

Qualifications For Guardians

Standards For Guardians

GUARDIANSHIP OF CHILDREN

Guardian Ad Litem

Role Of .The Court

Guardian Ad Litem Cases

Snake Oil Case

Clueless Case

Denialism Case

Mentally Challenged Case

Tough Love Case

Baby Machine Case

Troubled Lake Case

Sociopath Case

Lost In The System Case

Other State Case Summaries

New York Cases

Jelly Sandwich Case:

Colorado Cases

Illinois Cases

Arizona Cases

California Cases

Foster Care

Drugs, Sex & Violence

Sexual Abuse Of Children

Home Studies

Proposed Solutions

Root Causes Of Abuse & Neglect:

GUARDIANSHIP OF THE ELDERLY

Advocacy

Fiduciary Duty

Code Of Ethics

Summary Of A Practical Approach To Ethical Decisions

Pre-Incapacity Alternatives:

Determining Incapacity

Adjudication Of Incapacity

Appointing The Guardian

Guardian Of The Person

Managing Healthcare

Care Plan Meetings

Abuse, Neglect And Exploitation

Patient Mental Disorders

Disabilities

The Baker Act

Patient Rights

The Marchman Act

Guardian Of The Property

Eldercare Cases

Abandoned Case

Traumatic Head Injury Case

Forgotten Case

Family Squabbles Case

Bio-Ethics Cases

Gangrene Case

Pregnancy Case

Bio-Ethics Dialogue:

Reporting Requirements

Fraud & Exploitation

Guardian Of The Property Tasks

Estate Planning

Veterans Affairs (Va)

Medicare/Medicaid

Chip Program

Trust Agreements

End Of Life Planning

Resignation Of The Guardian

Advocacy Conflicts.

Death Of The Patient

Guardian Compensation

Summary & Conclusions

Guardians Of Children Reality:

Guardians Of The Elderly Reality:

Author’s Perspective:

Multi-Culturalism

Acknowledgement

Appendix 1

Appendix 2

Appendix 3

Appendix 4

INTRODUCTION

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We believe that this is the only book that combines Guardianship of the Children and Professional Guardianship of the Elderly, in a single publication. Moreover, this fully documented work is based on the author’s combined experiences, during many years managing numerous complex cases. This book focus is on the reality of guardianship, not the unrealistic words found in the guardianship training manual. It is for educators, legislators, healthcare providers, faith-based institutions, hospital managers, skilled nursing facilities, eldercare attorneys, and especially current and future guardians.

This book prepares one to become a professional guardian, after required forty hour of formal training.

In America, more than 3.6 million referrals are made to Child Protection Investigators, involving 6.6 million children, annually. The U.S. is the worst among developed industrial nations, losing an average of 4-to-7 children every day, to parental abuse and neglect.

Also, one million citizens currently reside in senior care facilities, which is expected to double by 2030. More than 65% of the cost for senior living facilities are paid by the patients and their families. Medicaid currently pays 73% for long-term care for poor individuals living in Skilled Nursing Facilities (SNF), or Assisted Living Facilities (ALF).

Nationally, the elderly population grew from 35 million in 2000, to 46.2 million in 2014. Significantly, 10% of all patients represent 65% of the total U.S. health-care costs (WSJ, Jan 19, 2017). Future healthcare costs, and Assisted Living needs will be driven by 77 million Baby Boomers, who represent 70% of U.S. financial assets and over half of all discretionary spending, that are planning to retire over the next two decades.

Medicaid/CHIP enrollment climbed from 56.4 to 74.5 million, from 2013 to 2016, respectively, costing about $500 billion, according to Kaiser Family Foundation (WSJ Feb.10th, 2017). Projections are that Medicaid costs, which poor families and elderly citizens depend on for healthcare services, could reach $750 billion annually by 2020.

Florida is the 4th largest state with over 20 million residents, with an elderly population of almost five million residents, which is expected to nearly double to 9.7 million by 2030. (Source: Dept. of Elder Affairs). Approximately 2% of the elderly reside in Skilled Nursing Facilities (SNF) and 25% live alone. About 6% have serious mobility and self-care limitations, while nearly 500,000 are probable cases of Alzheimer’s. The Alzheimer’s Association says, 5.4 million patients nationally have the disease, costing Medicare $160 billion last year, which may triple by 2050 as the population ages.

Such statistics make the need for additional guardianship at all levels obvious.

A considerable number of elderly citizens have at least one chronic condition that requires expensive medical care. Many of these individuals have inadequate housing, lack mental capacity to make pertinent decisions relating to daily living, have neither family, friends or persons willing or able to assist, nor the resources to provide proper care in their daily lives. Many have not established Advance Directives to specify their wishes in the event of incapacity. In addition to the rapid growth in the elder population, there remains a need for guardians for children and other vulnerable persons in similar circumstances. These individuals include the incapacitated, those with brain injuries, developmentally disabled people, and individuals with drug and alcohol addiction or mental illness.

More than six million people are addicted to opioids—including heroin, fentanyl, and oxycodone. Many young parents of children are addicted, and this is the major factor in abuse and neglect of children. Fatal opioid overdoses have risen four-fold, from 8,200 in 1999, to 33,000 in 2015, according to the Centers for Disease Control (CDC), making it the leading cause of accidental death. Addiction is clearly a serious epidemic!

Best Interest is the standard used by Guardian ad Litem (GAL) and Court Appointed Special Advocate (CASA) volunteers in choosing a course of advocacy for every child case in America, which involves their physical, emotional, social, psychological, medical needs, and critical family requirements. Eldercare Guardians use Substitute Judgment, Least Restrictive Alternative, and Best Interest standards in their professional work.

Essential and highly-relevant texts are highlighted in bold italics. Definitions for guardianship legal and technical terms can be found in Appendix-1.

PRINCIPLES & LAWS

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Yale Law Professor Arthur Leff expressed the bewilderment of an agnostic culture that yearns for enduring values, in a brilliant lecture delivered at Duke University in 1979 (summarized for this book). The published lecture titled: "Unspeakable Ethics, Unnatural Law" is frequently quoted in law review articles, but it is little known outside the world of legal scholarship. The heart of the problem, according to Professor Leff, is that any normative statement implies the existence of an authoritative evaluator. But with God out of the picture [in today’s secular society], every human becomes a godlet with as much authority to set standards as any other godlet or combination of godlets. For example, if a human moralist says, Thou shalt not commit adultery, he invites the formal intellectual equivalent of what is known in barrooms and schoolyards as ‘the grand sez who?’ Persons who want to commit adultery, or who sympathize with those who do, can offer the crushing rejoinder: What gives you the authority to prescribe what is good for me?

NATURAL LAW:

In the philosophic tradition of Thomas Aquinas, natural law is distinguished from divine law because its commands are accessible to human reason even in the absence of divine revelation. To a (mono) theist like Aquinas, the reality of a moral law was not in question. The question was how much of that law we could know from natural reason (or academic philosophy), and how much we could know only from Scripture or the Church. This two level system of reason and revelation, made it possible for Aquinas to fuse the pre-Christian philosophy of Aristotle with the revelation-based doctrines of the Church. …

The assertion of rights cannot for long be separated from the imposition of duties, however. If we give X a right to do as she wants, and she wants to get an abortion, we must soon face the question of protecting her from Y, who wants to protect the rights of unborn child. If majority opinion in the legislature favors some restrictions upon abortion, and there is no specific language in the Constitution on the subject, then pro-choice forces have to invoke something very much like a natural law duty to get their way. Thou shalt not interfere with a woman’s right to choose abortion; indeed, thou must help to pay for abortions through tax money; more than that, thou shalt not legislate that the woman contemplating abortion must be fully informed about the potential adoptive parents who desperately want to provide a loving home for her unborn child. Sez who?

The modernist impasse, in other words, does not stymie as long as all we are doing is proclaiming liberties. The problem for modernists is how to justify imposing obligations. Who or what has the authority to tell us whom we ought to admit to the sphere of protection?

Most of Leff’s lecture consisted of a review of all the unsuccessful attempts to establish an objective moral order on a foundation of human construction, i.e., to put something else in God’s place as the unevaluated evaluator (emphasis mine)… Every alternative rests ultimately on human authority, because that is what remains when God is removed from the picture. But human authority always becomes inadequate as soon as people learn to challenge its pretensions. Every system fails the test of The Grand Sez Who.…

Criminal tendencies in people can be considerably reduced by providing early moral education, by parents in the home. The child’s moral roots must be established early in the home. Public, and especially private education, can also produce more rational, self-controlled children and young adults. Good peer groups and positive role models are essential, especially during those early college years when your children are away from home. (Most college professors are liberal by a ratio of 12-to-1). Nevertheless, if one has a formed conscience they will always know what good is, however difficult it may be to achieve it. Modernist (liberal) philosophy teaches that ‘when we lost God, we lost only a projection of the best that was in ourselves; what was real in that projection therefore remains, and only the illusion is gone.’ We believe this is a false philosophy. Authors

Professor Leff concluded his lecture, as follows: All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us good, and worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us could law be unnatural, and therefore challengeable. As things stand now, everything is up for grabs. Nevertheless, napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. …There is in the world such a thing as evil. All together now: Sez Who? God help us.

See: First Things: Nihilism and the End of Law by Phillip E. Johnson, Mar. 1993

What supports society’s Principles and Laws? Are all laws derived from human rationality? Some claim that all laws are derived from Jewish moral principles. Still others claim they are based on rational laws of governance, such as the Constitution. Similarly, some propose that these principles and laws are not the result of logic or faith at all; they are based on human trial and error, over centuries. But then one must ask: Who created principles and laws of morality? Where did we get ideas of governance? Who designed the scientific laws that control the universe, and life’s DNA codes? Who’s the Designer?

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>Fig 2 Three Levels of Laws illustrated by the authors.

The authors of Guardianship Reality believe that the Creator gave us Human Rights, not the government, who might change such rights. There are three levels of laws:

1. Universal Laws: Transcendental laws: Ten Commandments, and the Golden Rule for all Human Persons. Equations, Constants, and DNA that controls the universe;

2. Natural Laws: Fundamental Human Rights to Life, Liberty and Property.

3. Civil Laws: Laws that continue to evolve over time, including the American Constitution’s Bill of Rights, and State laws to maintain a civilized society.

Guardianship and Healthcare civil law refers to individual autonomy, based on the human free-will, and the right to choose. Civil Law often has credibility issues since Federal or State Statutes can sometimes be considered immoral; for instance, the beginning of life and end-of-life decisions, such as abortion and assisted-suicide. Nevertheless, there has to be a baseline of principles and standards to legitimize guardianship. Without clearly defined ethical boundaries, humanity will become valueless, and uncivilized.

Access to justice means access to attorneys. Many victims of abuse, neglect and exploitation lack access to the justice system because they can’t afford an attorney. The fact is that court-appointed lawyers are not necessarily the best advocates. Those with money, get more justice, than those without. Moreover, attorneys created guardianship laws, rules and standards, and attorneys get to regulate themselves. There are too many laws, rules, regulations and standards (WSJ Review & Outlook, March 15, 2017 Florida’s Trial Bar Hurricane.), which is overwhelming many guardians. We believe guardianship is fundamentally about really caring for welfare of human persons and commonsense.

HISTORY OF GUARDIANSHIP

Guardianship (Conservators in some states) originated under English Common Law with the acknowledgement by the monarchy that the crown owed a duty to care for those subjects, who by virtue of physical or mental incapacity, could not protect their rights or provide for their basic needs. The concept arose out of fear that these individuals might bring harm to themselves or cause economic loss to their families. In the 14th century the doctrine of parens patriae was established; a legal principle from the Latin phrase meaning, parent of the country and the state is regarded as sovereign.¹

Essentially, the government can act to determine what is in the Best Interest of an individual, even if the individual disagrees, on the basis of incapacity or risk of serious property mismanagement. At that time, the Monarch took control of the individual’s property and supported them with the income from the individual’s estate. The primary intent of the original laws was to protect the community by protecting the individual. In spite of this benign conceptual origin, the implementation of the practice of guardianship (or conservatorship) has not always been kind, nor has it always resulted in a better life for the patient. This was evident in the premodern psychiatric institutions and by current publicized stories of abuse, neglect and exploitation of individuals—children and the elderly—who are the most vulnerable among us.

Guardians, by definition, are persons appointed by the court to act on behalf of the individual, their property, or both.² The guardian is empowered by the court to exercise those specific rights delegated by the court that affect the person, their property, or both.

In Reality, some form of Guardianship or Conservatorship exists in every state in America. Most states follow analogous laws and standards as does Florida.

The concept of a person’s capacity has proven more flexible, and less denigrating than incompetent, and by definition, a person with limited capacity may still maintain autonomy. The authors use patient or client, instead of ward, for the same reason.

Even under modern guardianship laws and procedures, the process of legal incapacity, by its very nature, tends to be disruptive, intrusive and stressful for all involved. When taken to its extreme, guardianship can strip a person of their independence and limit their freedom. Guardianship is therefore an important tool to intervene in the lives of those most vulnerable in order to care for and protect them from themselves and/or from others.

American laws were revised to include due process protections for patients, including the right to hearings, lawyers and independent evaluations. Due Process – is the administration of justice according to established rules and principles of law; based on the principle that a person cannot be deprived of life, liberty or property, without appropriate legal procedures and safeguards.

Recent laws also called for more emphasis on limited or partial guardianships, rather than comprehensive or plenary guardianships, in order to preserve as much of the individual’s autonomy as possible. Unfortunately, even with recent statutory changes enacted to protect patients, the nature of their situation and the lack of adequate oversight render them vulnerable to violations of due process and conceivably their basic human rights.

It is important to understand that guardianship is the choice of last resort. It is a process that must be used sparingly and only in cases where less restrictive means of intervention are not possible. Guardianship, in its best form, can be truly an act of charity, to protect those most vulnerable in our society. In its worst form, it can become a tool to abuse and/or exploit those individuals the law was designed to protect.

Guardianship in Florida is legislated primarily by Chapter 744 of Florida Statutes, (and other pertinent chapters). All guardians must be familiar with the current statutes in their states, such as New York’s Guardianship Law 801.03.

Laws governing guardianship can only be changed or amended by the legislator.

REASONS FOR GUARDIANSHIP

Guardianship is necessary when alternative means of protecting vulnerable individuals are not sufficient. Children, especially below the age of reason, need a guardian, and if the biological or adopting parent(s) are not available, then foster caregivers are essential.

Guardianship may be required for a number of medical, mental, or developmental conditions that affect the individual’s ability to make life sustaining decisions and to protect themselves or others they interact with from harm. Existence of a disability or advanced age is not, in and of itself, a reason for establishing a guardianship.

Being a guardian is a very challenging responsibility and not to be taken lightly. It is a solemn responsibility to assume control over someone’s personal well-being and financial assets. The guardian is expected to maintain higher standards of professionalism, and must be patient, flexible, efficient, assertive, organized, persistent, and always ethical.

TYPES OF GUARDIANSHIP

There are several types of guardians: Public Guardians for indigents— patients with limited financial means, generally supported by Medicaid, and Private Guardians primarily for non-indigent patients. Professional Guardian are those who have passed the state sponsored test, and at any time rendered services to three or more patients as their guardian. Guardians with one or two patients, who have passed the test, are also assumed to be fully qualified guardians.

Public Guardians and Guardian ad Litem for children, may also be considered professionals for purposes of regulation, skilled services and registration. A family member may be a private guardian, but a private guardian need not be a family member. Corporations, financial institutions and non-profit organizations may also serve as guardians. Private guardians may be paid for their services from the assets of the incapacitated person - the patient (previously known as the ward), or be paid by a third party, such as the state. Professional and non-professional guardians are required to receive at least 40 hours of guardianship training to become a guardian in most states.

The authors prefer to replace the word ward of the state, with patient or client.

ADVOCATE FOR THE MENTALLY ILL

(Chapter 394, Florida Statutes)

The Florida Mental Health Law, also known as the Baker Act, defines the term guardian advocate for the mentally ill. An Advocate, such as a Guardian ad Litem, known as CASA in some states, is a person appointed by the court to make independent recommendations regarding mental health and medical treatment on behalf of a patient who has been found incapacitated to consent to treatment under Mental Health Law.³ With training certification, Professional Guardians may also be asked to serve as Guardian Advocates under Chapter 394, F.S.

DEVELOPMENTALLY DISABLED

(Chapter 393, Florida Statutes)

A guardian advocate for the developmentally disabled is defined by the Developmental Disabilities Prevention and Community Services Act. A guardian advocate is a person appointed by the court to represent a person with developmental disabilities who can exercise at least one of the enumerated rights.⁴ This does not include those proceedings discussed above for guardian advocates of the mentally ill. Once this type of guardianship is established under §393.12, F.S. then the guardian advocate’s responsibilities are governed by Chapter 744, F.S.

PRE-NEED GUARDIAN

A pre-need guardian is the person named in a written declaration to serve as guardian in the event of the incapacity of the declarant. The written declaration must reasonably identify the declarant and pre-need guardian, and must be signed by the declarant in the presence of at least two attesting witnesses. The declaration is filed with the Clerk of the Court, so that when a petition for incapacity is filed, the clerk produces the pre-need declaration for the court file. Clerk of the Court – is an independent constitutional officer who is elected in each county to audit guardian reports, processes and maintain guardianship documentation (among other responsibilities).

Pre-need guardians for minors follow the same procedures as above, except that both parents must agree to the guardianship, and the parents must file the declaration with the Clerk of the Court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk produces the declaration. The court is not bound to appoint the pre-need guardian, if they are unqualified to serve.

Parents are the natural guardians of their biological and adopted children. If one parent dies, the survivor is the sole natural guardian. This right continues even if the surviving parent remarries. If the marriage between the parents is dissolved, the parent to whom the custody of the child is awarded becomes the natural guardian. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the mother nor the father is given custody of the child, neither acts as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child, and is entitled to primary residential care and custody of the child, unless a court orders otherwise.⁵

The natural guardian relationship ends when the child attains age 18, or 16 years if they are emancipated, meaning they are able to care for themselves.

EMERGENCY TEMPORARY GUARDIANS

After a petition for determination of incapacity has been filed, but before appointing a permanent guardian, a court may appoint an Emergency Temporary Guardian (ETG) for a person, the property, or both, giving the ETG authority to perform specifically delineated duties to deal with the emergency. The court must specifically find that unless immediate action is taken, the alleged incapacitated person (AIP) is in imminent danger of being physically or mentally harmed, or the AIP’s property is in danger of being wasted, misappropriated, or lost.

The court may appoint an emergency temporary guardian – on its own – if no petition for appointment of guardian has been filed at the time of an order determining incapacity. The authority of an emergency temporary guardian expires after 90 days, or when a guardian is appointed, whichever occurs first. The authority of the emergency temporary guardian may be extended for an additional 90 days upon a showing that the emergency conditions still exist. Usually, any need for guardianship that goes beyond this initial 90 days would not be considered an emergency. Some states and regions of the state allow the filing of a Petition for Determination of Incapacity in the event of an emergency, and allow the petitioner to withdraw the petition after the emergency has been dealt with. Nevertheless, such action is not generally permissible.

An emergency temporary guardian must file a final report no later than 30 days after the expiration of the emergency temporary guardianship If an emergency temporary guardian is appointed as a guardian for the property, the final report must consist of a verified inventory of the property, as of the date the Letters of Emergency Temporary Guardianship were issued, a final accounting that gives a full and correct account of the receipts and disbursements of all the property of the patient over which the guardian had control, and a statement of the property of the patient on hand at the end of the emergency temporary guardianship. If the emergency temporary guardian becomes the guardian of the property, the final report must satisfy the requirements of the Initial Guardianship Report for the guardian of the property.

If the emergency temporary guardian is a guardian of the person, the final report must summarize the activities of the temporary guardian with regard to residential placement, medical conditions, mental health and rehabilitative services, and the social condition of the AIP to the extent of the authority granted to the emergency temporary guardian in the Letters of Guardianship. If the emergency temporary guardian becomes the successor guardian of the person, the report must satisfy the requirements of the initial report for a guardian of the person.

GUARDIANS OF THE PERSON AND PROPERTY

Limited Guardian is a person or entity who has been appointed by the court to exercise the legal rights and powers specifically designated by a court. The court must find that the patient lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property.

Plenary Guardian is one, who after a court has declared an individual incapacitated and finds that he or she lacks the ability to perform the tasks necessary to care for his or her person and property, is appointed to exercise all delegable rights and powers of the patient. When some patient rights are restored, the guardian must prepare a new report that addresses the rights retained by the guardian.

STANDBY GUARDIANSHIP

Upon a petition by the natural guardians or a guardian appointed under §744.3021, F.S., the court may appoint a standby guardian of the person and/or property of a minor patient. Upon petition of a currently serving guardian, a standby guardian of the person or property of an incapacitated person may be appointed by the court. The standby guardian or alternate is empowered to assume the duties of guardianship immediately upon the death, removal, or resignation of the guardian of a minor, or on the death or adjudication of incapacity of the last surviving parent (natural guardian) of a minor, or upon the death, removal, or resignation of the guardian for an adult.⁶

SUCCESSOR GUARDIAN

A successor guardian is appointed when a guardian resigns, dies, becomes incapacitated, or is removed. A successor guardian must be appointed by the court, and duly qualified, before the current guardian can be relieved of their duties and obligations.

VETERAN GUARDIANSHIP

The Veteran Guardianship Law is a separate part of the States Guardianship Laws, §744.602, F.S. (et seq.). It is limited to veterans and other persons who are entitled to receive benefits from the Department of Veterans Affairs. Benefits are arrears of pay, bonus, pension, compensation, insurance, and all other moneys paid or payable by the United States, through the Department of Veterans Affairs, by reason of service in the Armed Forces of the United States. Veteran Guardianship Law does not replace the general law relating