Monthly case histories about the real guardianship experience
Guardianship Spotlight:
Pamela Keller, Esq, FSGA Board Member
How I Became Involved in Guardianship
Pamela Keller

I came to Florida 19 years ago after practicing law in New York for ten years, mostly in litigation. I joined a small firm here that needed a litigator. One of the attorneys practiced estate planning and within that focus, did guardianship work. He asked me to get involved.

My first case hooked me because it was so interesting.  It involved a blind, elderly woman. Her friends were taking care of her and were very concerned that she was being taken advantage of. We had the hearing at her house instead of the courtroom, and got her the help she needed.

I saw that you could genuinely help people and their families in need.
The Road to Least Resistance

We often have retirees who are under the radar even though they might be famous for what they have achieved in life. One such person was an artist who had been commissioned to paint a portrait of a well-known religious leader and had international investors in his art. He had children and was married to his fourth wife who was much younger than him.

The artist was starting to have cognitive issues, A doctor, who was also a neighbor, advised the artist's son that the son could file for guardianship.

When the artist was served with the guardianship papers he called his attorney, who referred the case to me.

The artist did what all of us should do. He had planned ahead in case of incapacity, making sure his estate planning documents were in place. These advance directives included a power of attorney and a designation of healthcare agent, and provided instructions for his medical treatment. Normally that would indicate that a guardianship isn't necessary. However, the son pursued the guardianship anyway. I was court-appointed  to represent the artist and didn't feel that he needed a guardian.

The son had the doctor testify that the doctor was treating the artist for Alzheimer's. However the medical records made no mention of this. The son could not prove incapacity. Also, we pointed out to the court that the doctor was communicating with the son about the patient without the patient's knowledge and against the patient's directions, which was not permissible.

The son eventually realized he could not support his petition and voluntarily discontinued the case.

The family members who cared about the artist didn't stop there. They had seen what was happening and formally complained to regulators for the Health Insurance Portability and Accountability Act (HIPAA), which resulted in the doctor being censured.

This story highlights the importance of valid estate planning, which creates a less restrictive means of dealing with mild cognitive impairment, even when there are people willing to pursue a guardianship. T he professional guardians I work with strive to take the road of least resistance as well, to make sure that vulnerable elders are under the least restrictive form of guardianship when guardianship is necessary. 
What question do I get asked the most?

"How is guardianship meant to protect someone vs. controlling them?"

Guardianship by its nature is a request to remove someone's rights and delegate those rights to another person, called the guardian. I provide clients with a description of the process, which starts with filing petitions for guardianship. I describe the court's role and that an examining committee is appointed to help determine whether the person needs a guardianship. Perhaps the person has a mental health issue or is vulnerable. The question is whether removing the person's rights is the answer. Sometimes a guardianship is not appropriate. There could be other options, such as advance directives, if the person is capable of executing the documents.  If the person cannot do this, then a court may step in to protect them, address their incapacity and appoint a Guardian to help.
What is a good tip for those selecting a guardian?

When necessary, guardianship is a critical safety net for people who become incapacitated and don't have suitable advance directives. Guardianship is a last resort. We assist clients in planning for incapacity first, which is usually a less expensive route.

If guardianship is necessary, it would be important to seek assistance from the Florida State Guardianship Association or its local affiliates. They have excellent resources and can offer proper guidance in the selection of a professional guardian or an attorney who can provide options.

- Pamela
We hope these articles are informative for you. Please keep in mind  that some of the views expressed are not necessarily the opinions or  philosophies of other FSGA members. We recommend hiring a guardian  that is a good fit for you.
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