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COVID-19 Update: We are working and here to help. The probate courts are open and we are continuing to file cases. Please email Attorney Nicole Morris at [email protected] if you have questions. Stay safe, we will get through this stronger together.

Power of attorney vs guardianship: the benefits of planning ahead

| Apr 16, 2021 | guardianships & conservatorships

When incapacitation keeps people from being able to fully care for themselves, someone must take over those duties. An estate planning document called a durable power of attorney allows people to authorize someone to make decisions and act on their behalf.

If there is no power of attorney, the state may name a guardian to take care of an incapacitated person.

Durable power of attorney

It is never too early to create estate planning documents, but once someone becomes incapacitated, it is too late. The Florida Bar explains that only a competent person may sign a power of attorney. In legal terms, competent means the signer must know what the document is and what it does, as well as who will receive the authorization to act as the signer’s agent and what that authorization entails.

A power of attorney may authorize the management of certain financial transactions such as investments. It may grant authority to handle all the signer’s legal and financial matters or all medical and personal care decisions. A person may have multiple powers of attorney that name different people or institutions for different roles.

Guardianship

Before the Florida Court will order a guardianship, it first rules out other possibilities such as a power of attorney, health care surrogate or some other option that provides a legal alternative. Guardianship is a last resort because involves removing people’s rights to make their own decisions and placing that right in the hands of a guardian. It requires the filing of a petition of incapacity from a physician as proof that the person does need a guardian, and the court provides oversight.

People can contest guardianships in court when there is evidence that they are unnecessary or that the situation is harmful in some way.