Can an unwanted guardianship be avoided?
It is perfectly clear that once a guardianship is formally initiated by the court, it is nearly impossible to reverse. But might there be an escape valve available between the time the guardianship proceeding is begun, and the life sentence is imposed by the Court?
Maybe. It all depends.
By the time a guardianship itself has officially begun, meaning that a judicial order or letters of guardianships have been provided to the new guardian, essentially every opportunity to interrupt or halt the process has evaporated. All that’s left at that point is the futile years of litigation and estate depletion with which the court insiders are so familiar and in which anyone other than a court insider is doomed to lose big time as they watch their beloved family member be abused and exploited by the system.
But in the early stages of the court process and prior to the issuance of letters of guardianship there are limited opportunities to escape the system and prevent the guardianship from taking place, at least temporarily and perhaps permanently.
The guardianship process begins with an unsworn allegation usually from a lawyer that someone in a given jurisdiction is being abused, exploited or neglected. This is usually referred to as an incapacity evaluation request. It is often accompanied by a separate but simultaneous request that a guardianship be established. This triggers the court to begin the process of evaluating the allegedly incapacitated person for their level of mental capacity. The period of time between the incapacity evaluation request and the submission of evaluations from court-appointed evaluators can take several weeks, but it is very unusual for it to take less than a week. This week or longer timeframe—a golden window–is an opportunity zone during which one can take actions that can at the very least forestall and in some select cases prevent the guardianship altogether.
Just to banish the thought, it is impossible for a layperson to disprove the contention that a loved one is being abused or neglected or exploited. This is especially true when there is no evidence one way or the other of abuse neglect or exploitation, but the court has been presented with an allegation of same from one member of the bar to another, namely the lawyer and judge. Since the percentage of incapacity evaluations that result in a finding of normal capacity is minuscule, the order to perform evaluations is tantamount to the establishment of a guardianship that will begin very quickly after the examinations are completed and handed over to the judge.
In addition to the golden window, an opportunity to escape the system lies in the limitation of the judge to have influence over only residents within his jurisdiction. That jurisdiction is determined geographically. This legal authority, or “jurisdiction”, is in effect only over people that can be found within the boundaries of his area of jurisdiction. (As an aside, it should be noted that even individuals whose official residence is not in that geographically limited area are under the jurisdiction of the probate judge even if they live elsewhere and are only visiting.) Until the judge makes a ruling, an allegedly incapacitated person retains all their rights even if the judge contemplates an emergency temporary guardianship.
The emergency temporary guardianship deserves special attention. It is basically a shoot first and ask questions later approach to guardianship. It is well described at
https://www.linslawgroup.com/blog/2020/09/appointing-an-emergency-temporary-guardian-in-florida/
and the pertinent statute can be found at
The 2021 statute states:
2) Notice of filing of the petition for appointment of an emergency temporary guardian and a hearing on the petition must be served on the alleged incapacitated person and on the alleged incapacitated person’s attorney at least 24 hours before the hearing on the petition is commenced, unless the petitioner demonstrates that substantial harm to the alleged incapacitated person would occur if the 24-hour notice is given.
Of course, the immediate advantage in the ETG goes to the attorney requesting the emergency hearing and if they are really motivated, they can ask the judge to skip the 24-hour advance notice provision in which case escape from a guardianship is impossible. However, the situation is not common and typically there is a minimum of a 24-hour window (often longer) from the time the judge is engaged, and notice goes out to the time a hearing can be held. That period is another golden window of escape and if no E.T.G. is requested that window is even longer.
These very tight time constraints make it very difficult, but not impossible, to legally hustle an allegedly incapacitated person out of the jurisdiction in question and take them as far away as possible in that short period of time while simultaneously planning to change their residence permanently to a completely different jurisdiction, city, state, or country. No court has authority to act outside its own jurisdiction area. That wrinkle in the law is an opening, a rare opportunity to rescue a loved one from the clutches of the guardianship court. The process becomes paralyzed if it cannot serve notice, which is a huge part of its due process obligation, to the potential ward and their lawyer (if known). Typically, the potential ward has not selected an attorney to represent them so the issue of giving notice to the ward’s attorney may become moot.
So, what can be done in less than 24 hours? If there is advance preparation with the knowledge that a loved one is potentially a target of guardianship, one can legally remove their loved one out of the area in a car bus or plane to any appropriate destination while the AIP still retains their rights. But that will only forestall the process for a very brief period of time. Once the first and immediate objective of being out of the jurisdiction is accomplished, preparations have to have been solidly in place to secure a place to live, money to live on, and a plan to protect assets. That is the point of this article.
Most of the time, the court process notification comes as an absolute shock to the allegedly incapacitated person and their family. There is no advance warning. There is no explanation. There is only an order to appear. Only those who have taken precautions such as those suggested herein can act quickly enough to save their loved one. Those fortunate individuals will have already taken steps to facilitate the extraction of their loved one in a manner which would allow them to not only avoid being conscripted into an unwanted guardianship but to also retain the ability to lead a satisfactory lifestyle and enjoy the use of their assets unhindered by the court insiders.
Importantly, in Florida the Second DCA Appellate Court in the case of Foster v. Foster has made it clear that until a person is adjudicated to have lost their rights, they retain them. This means that in the period of the golden window, an allegedly incapacitated person retains the right to hire an attorney of their choice and should do so immediately. This means having to have researched and decided on an attorney to represent the AIP well in advance and having a retainer in hand pre executed or ready to execute. It also means preparing the AIP for the possibility of urgent flight from their home at a moment’s notice.
Here are some specific steps to take to go down that path:
- This is a solo operation in which discretion is paramount and is likely to transpire at night. Tell no one where you are headed or what you are doing.
- determine in advance where you and your loved one will go and where you will be able to stay for as long as 90 days or more without burning through your assets. The further away the better.
- highly preferred would be an out of state second home, a relative’s home, a friend’s home.
- Not ideal but adequate would be a BRB, hotel or motel, mobile home, resort
- consider seeking shelter on an Indian reservation (see more comments on this later)
- lay aside or have readily available a source for enough cash to last you and your loved one for all your needs for 90 days. Have that cash readily available in something like a go bag.
- Establish in advance a small amount bank account in an out of state bank unrelated to your current bank, or better in a place like St. Thomas or St. Kitts/Nevis into which one can quickly transfer funds electronically and have immediate access to those funds.
- In that go bag, which should be available on a moment’s notice, to the extent possible, place the following relevant documents of your loved one and those of your own
- Passport/birth certificate/citizenship papers/advance directives/will
- Voter registration card
- driver’s license or other state photo ID
- Banking information, checks, CDs, debit cards (credit cards might be blocked)
- all life insurance and disability policies
- deeds to all properties/title to auto
- Social Security card
- a list of names and addresses phone numbers and emails of trusted family members and attorneys
- all medications needed for 90 days and a list of prescribing doctors
- all relevant medical records
- at least two changes of clothes appropriate for the weather that is anticipated in the new location
- spectacles, hearing aids, assistive devices
- obtain and pre-complete and file all documents necessary to immediately
- obtain a new mailing address with the new local post office
- change banks and transfer funds, open accounts and obtain new debit cards
- change voter registration, Social Security designee and bank deposits, driver’s license
- open accounts with several businesses and utilities in the new location
- turn off tracking capabilities on any and all mobile phones
- avoid use of landline phones
- take with you only what is absolutely necessary for 90 days of survival.
- If possible, in advance, make an inventory of valuables which you will leave behind with photos. Unfortunately, expensive valuables left behind may be seized during this time either by court officers or greedy family members.
A word about Indian reservations. In many states including Florida, Indian nations have existed on Indian lands/reservations within the United States, but they are not legally part of the United States or Florida. This means that circuit courts have no jurisdiction within them. There is reason to believe that in guardianship emergency, Indian tribal councils and Indian police would take at least 24 hours to investigate a non-criminal matter related to pre-guardianship flight when an allegedly incapacitated person checks into a hotel on their property. Though Indian police typically cooperate with Sheriffs and local Police100% of the time in the case of criminals who have entered their reservations, it appears that they would look much more leniently on this sort of non-criminal situation and take at least 24 hours for their tribal Council to deliberate what their next step would be. This buys you at least another 24 hours to make your next steps.
It must be emphasized that simply taking your loved one out of the jurisdiction without taking all the appropriate preparatory steps mentioned above is doomed to failure. The circuit court judge can issue a bench warrant to have you and your loved one returned to the jurisdiction. In the worst-case scenario the court can take the egregious step of accusing you of the federal crime of kidnapping. The closer you are to the original court of jurisdiction the more power the court will exert to have you and your loved one returned. As a corollary, quickly and stealthily leaving the country particularly to a country with no extradition treaty with the United States would seem to be the safest gambit of all.
The extraordinary measures outlined herein emphasize how difficult it is to prevent a guardianship. Without hypervigilance and meticulous preplanning and follow through we are all at the mercy of the probate guardianship racket. It is therefore imperative for each of us to regularly evaluate the forces and realities around us, the circles of influence populated by our family and others with interests in an estate, the mental state of our loved ones and their vulnerability as well as the degree to which the local guardianship court has been involved in guardianship abuses in the recent past. Most importantly, it is imperative to know when to pull the trigger on such a plan. I would suggest that the instant you or another family member or loved one even hears the word guardianship mentioned even once, that would be the moment to act without delay. By the time anyone has uttered or heard the word guardianship, one can be sure that consultations with lawyers have already taken place and that plans are in the works to initiate a guardianship very soon.
Clearly, this approach is extraordinary and requires resources, tremendous amounts of forethought planning and courage. It can be very difficult to convince the AIP to leave their home with you since they may not recognize or may wish to ignore the danger they face, even though you do. Leaving your own family even for short periods of time can be incredibly stressful. Not knowing when you’ll be home is even more complicated and distressing. On the other hand, those of us who have lived through it understand that the initiation of a guardianship ushers in many years or even decades of horrific litigation, abuse of the loved one, destruction of inheritance plans, legal abuse by the court and court insiders, depletion of one’s own assets via egregious legal fees, endless anxiety stress and the increased likelihood of drug and alcohol abuse or even suicide, not to even mention watching a loved one wither away, alone and miserable in a guardianship directed assisted slow homicide.
The above information should not be construed as legal advice and is not legal advice or medical advice. Consultation with a knowledgeable attorney familiar with these issues may be appropriate.