Can a court appointed guardian change the Ward’s will? A guardian has a legal, or fiduciary duty, to act in the best interest of the Ward. A Ward has already been deemed to have limited mental capacity. What authority does the guardian have in regards to estate planning?
The powers of a guardian are listed at Florida Statute 744.441. Florida law does not authorize the guardian to create a will or change an existing will. In regards to estate planning, the Florida Statutes allow the following:
Florida Statute 744.441 (19) Create or amend revocable trusts or create irrevocable trusts of property of the ward’s estate which may extend beyond the disability or life of the ward in connection with estate, gift, income, or other tax planning or in connection with estate planning. The court shall retain oversight of the assets transferred to a trust, unless otherwise ordered by the court.
A Guardian would need to file a Petition for Authorization to Act to create a trust. In the petition the Guardian will state how the opening of a trust is in the best interest of the Ward. The Judge will consider the petition and, if the approved, will sign an Order Granting the Petition for Authorization. The Guardian can then create a trust on behalf of the Ward. A trust can protect the Ward’s assets and also transfers ownership of accounts or other assets of the trust directly to the beneficiaries of the trust when the trustee passes away without the need of opening a probate estate.