Guardianship 101: What is the Difference Between a Voluntary and Involuntary Guardianship, Do They Require the Same Documentation?

In Florida there are two primary forms of guardianship, involuntary  and voluntary.  Although the large difference is obvious by the name there are intricacies between the two that you need to know and evaluate before considering a guardianship in Floirda. A recent case from February of this year, Whiting v. Whiting highlights the necessary differences quite well but for the best and most clear answers always consult an experienced Palm Beach Probate Attorney. 

• Jeffrey Whiting sued to reverse the terms of his late Mother’s trust that directed all the funds to Anthony Whiting his brother. 
• The brothers had a stipulated guardianship agreement whereby the Mother could not dispose of anymore than $1,500 in one transaction the agreement spoke nothing of a right to edit her trust however the Mother did so reverting all funds to go to Anthony (they had previously been split). 
• The case actually revolved around whether or not it was a voluntary or involuntary guardiaship. Why?
• In Florida to enter into a voluntary guardianship a person has to have the capacity to enter into that agreement which means a doctor has to agree that you ARE competent. 
• On the other hand for an involuntary guardianship the opposite is necessary the doctor has to find that the ward is incompetent. 
• Presumably this was a voluntary guardianship because there was never a finding that she was incompetent filed with the stipulation the problem was there was also no document that showed she was competent thus the Court had a genuine issue to determine: what type of guardianship was set up, and was the Mother allowed to edit the trust?

How to consider whether or not a voluntary guardianship is right for your situation?

1. Level of Control- how much control do you need over the to be ward? Will they agree to that level of interdiction into their lives or will you need the Courts help? How aware are they of their susceptibility to undue influence?
2. Assets- Although it may seem sad to say the wealthy are much more likely to be targeted then those without assets. If your loved one has a sizeable estate or valuable assets a guardianship over those assets may be vital but they may not be willing to allow someone to do so.
3. Time – sometimes Time is of the essence after all in the case discussed above the Plaintiff did not learn about the changes to the trust until after the Mother had died, that means that the trust could be liquidated before he even gets to Court. When considering a relative who is squandering their estate while still alive, time may also be of the essence and an emergency petition to the guardianship court may be necessary with the help of an experienced palm beach Probate Attorney of course.

Want to learn more about the Florida trust system and setting up your own trusts?

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