Guardianship Laws to be Strictly Adhered!

Inter Vivos Trusts Are Important in Avoiding Guardianships ?

Mr. & Mrs. Adalberto Fernandez
August 13, 1997
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The attorney-in-fact will take the necessary steps to transfer the assets to the living trust and thereby avoid the need for the institution of guardianship proceedings.

Conclusion plan which we are recommending to you has three primary advantages over your existing plan. First, the use of revocable living trusts instead of just wills offers you the opportunity to avoid probate at your deaths. Second, the use of the living trust will enable you to avoid guardianship in the event of incapacity.

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Related Posts http://en.wikipedia.org/wiki/Trusts_and_estates

"The use of the living Trust will enable you to avoid guardianship in the event of incapacity." Buyer beware, this isn't so, take it from one who has been there! If you believe that forking over good money for a Trust will avoid Guardianship proceedings, then you deserve to have a guardian at $450/hour take all your money ! It isn't so.

This law is wide open to interpretation and is interpreted any way the probate court chooses to!

Myth N0#2

Florida Statues 744.331(6)(b)Least Restrictive Alternative

(b) When an order determines that a person is incapable of exercising deletable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian must be appointed to exercise the incapacitated person's deletable rights unless the court finds there is an alternative. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.

"If it comes to the attention of the presiding judge that the alleged incapacitated person has executed any advance directives, including a Durable Power of Attorney, the petition for guardianship SHALL not be heard until the issue of validity of the advance directives is disposed of, regardless of whether or not there is any adversarial challenge to them. In resolving any contested powers, there shall be a full and constitutionally sufficient evidential hearing, on notice, to determine the capacity of the maker at the time of execution of the documents."

In law "shall" is mandatory; "may" is discretionary.

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