The incapacity of a loved one brought on by advanced age, illness, or both often leads to the appointment of a legal guardian to act on behalf of the person and/or property of the incapacitated individual. Before such a guardianship begins, Florida law requires that a judicial proceeding take place to determine the existence and extent of the potential ward’s incapacity. In these proceedings, the court will make the following findings:
- The exact nature and scope of the person’s incapacities;
- The exact areas in which the person lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for her or his physical or mental health or safety;
- The specific legal disabilities to which the person is subject; and
- The specific rights that the person is incapable of exercising.
These factors ultimately define the guardianship as one of the ward’s person, property, or both.
What is the Effect of Death on a Guardianship of the Person?
A guardianship of the person aims to provide the ward with health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur. Because the guardian’s responsibilities are coterminous with the needs dictated by the ward’s physical and mental health, this type of guardianship terminates immediately and automatically upon the ward’s death without further judicial proceedings once a death certificate is filed.
What is the Effect of Death on a Guardianship of the Property?
A guardianship of the property exists for the purpose of taking those actions necessary to obtain, administer, and dispose of the ward’s real and personal property, intangible property, business property, benefits, and income. Put another way, the subject of the guardian’s dominion survives the lifetime of the ward. As a result, the guardianship itself survives the ward and does not terminate at death.
Following the ward’s death, the guardian of the property is charged with filing a final report and delivering the ward’s property to the appropriate parties. While these obligations are fully set forth in the Florida Statutes, it is recommended that the guardian work with an attorney to minimize the risk of liability to the ward’s estate.