How Does a Durable Power of Attorney Help Prevent a Guardianship?

Durable power of attorney? Guardianship?

Most people who have considered estate planning have some understanding of these terms but may not be clear on how they work in Florida – or what they can and cannot enable you to do.

Along with a will, a durable power of attorney is, perhaps, the most important element of a person’s estate plan.

What exactly is power of attorney? Is it preferable to an application for guardianship? And are there instances when guardianship is the best option?

What is a power of attorney?

As we age, the likelihood of mental incapacity increases.

It is important to plan for this. Otherwise, other people may make financial, medical, legal, and personal decisions on your behalf that are against your choices or preferences.

A power of attorney is the best way to accomplish this in Florida. With a power of attorney, you can name a trusted representative (called an “agent” or “attorney-in-fact”) to legally make financial, legal, and medical decisions on your behalf and in your best interests.

This legal document can be shared with the relevant financial, medical, and other institutions that require the authorization of a named individual to manage affairs on behalf of an individual.

In Florida, a power of attorney may be set up for a single transaction like selling a property. However, most people looking to create a comprehensive estate plan want to put measures in place that protect themselves and their loved ones in the event of incapacity.

A durable power of attorney allows you to nominate a trusted individual to make decisions for you if you lose capacity. It can be activated immediately or only when a doctor’s assessment confirms that you have lost the capacity to make decisions yourself.

The powers granted can be as broad or limited as you choose. Your power of attorney document should be drawn up by a professional estate planning lawyer to accurately reflect your wishes.

What is adult guardianship?

If no power of attorney or other legal document is in place to grant decision-making responsibility once someone loses capacity, the Florida courts may need to intervene.

Adult guardianship is when an individual (generally a family member) applies for legal decision-making authority from the courts.

This can authorize another individual to make personal and/or financial decisions on behalf of an incapacitated person, thereby removing the rights of that person to act for him/herself.

Is a power of attorney right for you?

The process of applying for legal guardianship in Florida can be expensive and time-consuming.

To make matters worse, it often takes place at a time when a family is already stressed and concerned about the welfare of a loved one.

Additionally, according to the Florida Guardianship Law, you are not legally entitled to initiate guardianship proceedings until all other alternatives have been exhausted.

Of these alternatives, power of attorney is often the best option – but it requires some planning. Nobody can sign a power of attorney (or any other legal document) if they are not mentally competent.

The process of initiating a power of attorney should begin well before mental deterioration has progressed. Otherwise, the agreement may be voided by the court.

In summary, power of attorney is usually preferable to guardianship for multiple reasons:

  • It is less expensive
  • It takes less time
  • It is pro-active rather than reactive
  • It does not require court intervention
  • You remain in control of who makes decisions for you
  • It delegates your rights rather than takes them away

To enjoy the peace of mind that comes with having a power of attorney in place, you need to be able to trust another individual (or individuals) with making important decisions regarding finances and legal commitments.

For this reason, the nominated agent is generally a trusted family member with the financial skills and insight into one’s financial affairs to be able to manage them effectively.

How does a durable power of attorney prevent the need for guardianship?

In most circumstances, a durable power of attorney will prevent the need to initiate guardianship proceedings.

You appoint a nominated attorney-in-fact to make financial and legal decisions on your behalf. It does not remove your rights to make decisions while you are able to do so.

This is a system that works well for most families. However, even with a comprehensive estate plan and a durable power of attorney in place, court intervention may sometimes be necessary.

What are the exceptions?

The court may still be required to intervene in some circumstances where a durable power of attorney exists. Some typical examples include the following:

  • The principal of the power of attorney refuses to take an action that an attorney-in-fact recommends and is a danger to him/herself
  • The power of attorney has been revoked by the principal
  • Family members have reasonable grounds to object to a power of attorney agreement
  • The grantor is being exploited

A guardianship ruling from the courts will remove the rights of the alleged incapacitated person and attorney-in-fact, placing decision-making responsibilities with the legal guardian.

However, until that time, the alleged incapacitated person retains all rights – even to make bad decisions.

Protect assets and loved ones with a power of attorney

In Florida, with our high population of seniors, power of attorney agreements are the best way to ensure that the court system is not overloaded.

For people creating an estate plan, it is an essential document.

Call The Law Offices of Hoyt and Bryan, LLC if you need assistance in creating a durable power of attorney: (407) 977-8080.

Peggy R. Hoyt - The Law Offices Of Hoyt & Bryan
About the Author: Peggy Hoyt
Peggy R. Hoyt practices in the areas of family wealth and legacy counselling, including trust and estate planning and administration, elder law, small business creation, succession and exit planning, real estate transactions and animal law.