Least Restrictive Alternatives

Planning for Incapacity: Advance Directives vs. Guardianship

February 25, 2026 | by Chepenik Trushin LLP

When a loved one becomes incapacitated and can no longer manage their affairs, families often assume they can simply step in to help. However, legal authority to fully take control of a loved one’s personal and financial affairs does not arise automatically upon their incapacitation. Without proper advance planning, particularly through a durable power of attorney, families may be forced into a court-supervised guardianship, which can be emotionally taxing and financially draining. Understanding the differences between (1) planning in advance for your own potential incapacity and (2) a court-supervised guardianship helps elucidate why planning ahead is so important.

In Florida, guardianship law is governed, in part, by Chapter 744, Florida Statutes. A guardianship may be established only after a court determines that a person lacks capacity to exercise some or all of their rights and that no lesser restrictive alternative (such as the existence of a trust with an appointed trustee to manage the person’s financial affairs, or the existence of a durable power of attorney authorizing someone to act on another’s behalf in the event of their incapacity) is sufficient to properly protect their interests. For example, guardianship may become necessary when no one holds a valid durable power of attorney for a now-incapaciated person, and family members disagree about decision-making authority or there are concerns about exploitation or mismanagement of their loved one’s affairs. Florida courts may appoint a limited guardian, who can only exercise certain rights, or a plenary guardian, who is empowered to take any (legal) action on behalf of the incapaciated person.

Guardianship ultimately places decision-making authority under court supervision. A guardian’s powers are defined by court order, and the guardian must seek approval for certain actions. While guardianship may provide oversight and protection, it also limits flexibility and privacy, and guardianship proceedings often cost many tens of thousands of dollars, particularly if they are contested.

Guardianship proceedings – learn the facts and the Florida laws

January 13, 2022 | by Chepenik Trushin LLP

In November 2021, after Britney Spears’ father, Jamie Spears, was suspended as conservator of his daughter’s conservatorship, a judge finally ruled to end the conservatorship. This decision signaled the end for the restrictive supervision that had been in place since 2008. Back in June 2021, Britney Spears made headlines as she gave an emotional testimony pleading for her conservatorship to be lifted, echoing the online social media movement #FreeBritney. After nearly fourteen years, Ms. Spears is finally poised to assume complete autonomy of her life and regain many of her most fundamental individual rights.

What is a conservatorship?

Under California law, where Ms. Spears resides, “[a] conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.” The state declares one to be a conservatee if he or she is intellectually incapacitated and unable to make independent decisions, usually involving ailments such as dementia, serious mental illness, or other metal disabilities. Once the court establishes the conservatorship, the conservatee loses the right to make certain decisions, such as deciding medical treatment, controlling financial assets, marrying, and signing contracts, to name a few.

Guardianship 101 – What you need to know and learn

May 18, 2021 | by Chepenik Trushin LLP

Guardianship: Don’t Believe Everything You Watch on Netflix

Netflix’s new sensationalist movie “I Care a Lot,” released this past February 19, 2021, might have you thinking that being a guardian may be the path to wealth and easy money. Although a scammer making a living by successfully requesting the courts to appoint her as the guardian of elderly people she falsely claims cannot take care of themselves makes for a captivating story, fortunately this is far from the reality of guardianship practice.

Guardians are appointed by the court to care for and manage the property of people who cannot do it for themselves, such as individuals with a chronic mental illness, dementia, traumatic brain injury, or orphaned children. But the first thing to keep in mind is that, before a guardian is appointed, the allegedly incapacitated person has to be declared incapacitated by a court of law. This process involves the evaluation by one or more mental health professionals and/or physicians. Thus, unlike the movie, simply alleging a person cannot care for him or herself will not be sufficient. Once the person is deemed incapacitated, some or all of his or her legal rights are removed, and the guardian is charged with the responsibility to exercise those rights on behalf of the incapacitated person, who is legally referred to as “the ward.”