Florida Probate Litigation Lawyer Blog
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.
In contrast, a durable power of attorney is a private arrangement, wherein a person (called a “principal”) designates another person (called an “agent” or “attorney in fact”) to exercise certain rights on their behalf, which delegation of authority survives the principal’s incapacitation.
A durable power of attorney does not require court approval to be effective (so long as it is validy drafted and executed in accordance with Florida law), and allows the principal to choose who will act on their behalf and how much authority they will have.
The most effective way to potentially avoid guardianship in the event of one’s incapacity is proper advance planning. In any guardianship proceeding, Florida law requires courts to consider whether alternatives to guardianship exist before appointing a guardian. Common planning tools include: (1) a Durable Power of Attorney, as discussed, (2) a Designation of Health Care Surrogate (wherein a person designates a person they want to make health care decisions for them in the event of incapacity), (3) a Living Will (which speaks to your wishes regarding medical care and end-of-life treatment in the event of incapacity), and (3) a Revocable Trust, which can provide continuity of asset management via a trustee without court involvement.
When properly drafted and executed, these documents allow individuals to choose who will act on their behalf and under what circumstances. They also may help reduce the likelihood of family disputes and court intervention during difficult times.
In Florida, guardianship is a necessary safeguard when no other viable options exist, but it is rarely the preferred solution. Guardianship involves court oversight, significant cost, and a loss of privacy. Advance planning through powers of attorney and related estate planning tools can often prevent the need for guardianship altogether. Taking proactive steps now can protect both personal independence and family harmony later.
The attorneys at Chepenik Trushin LLP help clients plan ahead to reduce the risk of guardianship by preparing durable powers of attorney, advance directives, and other estate planning tools. When guardianship becomes necessary, we also guide clients through incapacity proceedings and ongoing court requirements, providing clear, practical support during a challenging and often emotionally-taxing process.
The Miami estate planning attorneys at Chepenik Trushin LLP are ready, willing, and able to assist with any estate planning or guardianship needs. Please give us a call today at 305-981-8889.
