Wednesday, October 24, 2007

Request for Review of Continued Need for a Guardian

Guardianships are used as a last resort for persons who did not plan
ahead for incompetence. 14 Fla.Prac., Elder Law § 9:16 (2007 ed.). Fla.Stat. §
744.331(6)(b) requires a court to determine if less restrictive means are available.
In this case, the court has never made that determination, as the Court reserved
its decision on those instruments and the lesser restrictive means when it initially imposed the guardianship, due to the exigent circumstances at that time. The purposes of the original guardianship have been accomplished, and the expense and interference imposed by Mr. Tischenkel's attorneys should no longer be accepted.

Raul Fernandez can also handle his mother's affairs through his powers
as successor trustee of the Clara Fernandez Revocable Trust. "Trust
arrangements are less restrictive alternatives in that the trustee can attend to the
financial needs of the beneficiary. Thus the use of a trust could avoid the time,
expense, red tape and trauma of a guardianship proceeding." 14 Fla.Prac., Edler
Law § 9:16 (2007 ed.)

Fla.Stat. § 744.462 provides that "[i]f, after the appointment of a guardian,
a petition is filed alleging that there is an alternative to guardianship which will
sufficiently address the problems of the ward, the court shall review the continued
need for a guardian and the extent of the need for delegation of the ward's rights.

" Therefore, Raul Fernandez respectfully submits this Memorandum to the
Court for consideration, and enter an order determining that the durable power of
attorney is the "least restrictive alternative" to guardianship; discharge Robert
Tischenkel as guardian of person and property of Clara F. Fernandez and require
all reports and accountings of the guardian not previously submitted and
approved to be filed within thirty (30) days of the entry of this Court's order of

Excerps of "Petition for Judicial Review of Need for a Guardian " Download the entire Document Here >>

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