Exploring Less Restrictive Legal Solutions for Aging Loved Ones in Orlando
Orlando Families Facing Tough Decisions About Aging Loved Ones
Here in Orlando and throughout Orange County, I’ve worked with many families who are deeply concerned about an aging parent or relative. When seniors start showing signs that they can no longer manage their daily affairs—whether that involves health, money, or housing—families often feel pressure to take legal action. For many, the first thought is guardianship. But the truth is, under Florida law, guardianship should be a last resort.
I’m Attorney Beryl Thompson-McClary. As a Guardianship Attorney in Orlando, I’ve helped families on all sides of this issue—whether you’re trying to avoid unnecessary guardianship, or seeking the most protective arrangement for a vulnerable loved one. My job is to walk you through the options Florida law provides and help you understand what’s truly in your family’s best interest.
If you’re in this situation, call my office at 1-888-640-2999 to schedule a consultation. I represent clients throughout Orange County in guardianship matters and alternatives.
What Is Guardianship and Why It’s a Last Resort
Under Florida Statutes Chapter 744, guardianship is a legal process that removes some or all of a person’s civil rights and assigns those powers to a court-appointed guardian. A judge may decide to grant guardianship when a person is found to be incapacitated and incapable of managing property or making important decisions regarding their health, finances, or personal welfare.
But the law also recognizes the serious nature of taking away someone’s rights. That’s why Florida law requires the court to consider “least restrictive alternatives” to guardianship first, especially when dealing with older adults who may still have partial capacity.
Florida Law on Less Restrictive Alternatives to Guardianship
The idea of “least restrictive alternatives” is not just a best practice—it’s codified in Florida Statutes § 744.331(6)(b). The court must determine whether there’s an alternative to full guardianship that would still meet the elder’s needs. The court is obligated to consider tools like:
- Durable Powers of Attorney
- Health Care Surrogate Designations
- Trusts
- Representative Payee arrangements
- Voluntary Guardianship
- Case management services
These options are especially useful when the individual is still capable of making informed choices about who should assist them.
Durable Power of Attorney: The Most Common Alternative
One of the most effective tools available under Florida law is a Durable Power of Attorney (DPOA) under Florida Statutes § 709.2101 et seq. This legal document allows a senior to appoint someone they trust—often an adult child, relative, or friend—to handle financial and legal affairs on their behalf.
Because it remains effective even after the person becomes incapacitated, a well-drafted DPOA can often eliminate the need for guardianship altogether. However, the document must be created while the person still has capacity.
Many clients I work with tell me they wish they had addressed this sooner. As an Orlando Guardianship Attorney, I help families understand how to put these protections in place before it’s too late.
Health Care Surrogate: Managing Medical Decisions Without Guardianship
Another key alternative is appointing a Health Care Surrogate under Florida Statutes § 765.202. This allows a trusted person to make medical decisions on behalf of someone who becomes incapacitated. It can include decisions about doctors, treatments, surgery, medications, and even end-of-life choices.
The key benefit here is that a surrogate can act quickly and without court involvement, so long as the document is clear and compliant with Florida law.
Revocable Living Trusts: Managing Assets Privately
For seniors with significant or complex assets, a Revocable Living Trust can provide excellent protection. The person creating the trust (the “grantor”) can name themselves as trustee while they’re capable, and then assign a successor trustee to take over if they become incapacitated.
This arrangement keeps financial management entirely out of court and allows the transition of control to be smooth and private. Florida courts typically see a valid trust as a strong alternative to a financial guardianship.
Representative Payee for Social Security Benefits
If your loved one’s only income is Social Security or SSI, a Representative Payee arrangement may be enough. The Social Security Administration allows you to apply to manage someone else’s benefits when they can’t manage on their own.
This does not require court action and can be an effective limited solution, especially when guardianship would be overly burdensome.
Voluntary Guardianship Under Florida Law
Florida also allows for Voluntary Guardianship under Florida Statutes § 744.341, for seniors who are mentally competent but physically unable to manage their affairs. The senior voluntarily petitions the court to appoint someone to help them manage property and daily needs.
This approach preserves dignity and autonomy because the senior consents to the process and retains the right to terminate it if circumstances change.
When Guardianship Still Might Be Necessary
As much as I advocate for avoiding unnecessary guardianship, I’ve seen cases where guardianship becomes the only practical solution. Some seniors resist help, even when they’re no longer safe living alone or making financial decisions. Others fall victim to scams, or suffer from progressive dementia.
In those cases, family members may need to file a Petition to Determine Incapacity and for Appointment of Guardianunder Florida Statutes §§ 744.3201 and 744.331. The court must find by clear and convincing evidence that the person lacks capacity and needs assistance.
As an Orlando Guardianship Attorney, I help families present clear evidence and ensure the proposed guardianship is legally justified and tailored to the senior’s actual needs—no more, no less.
How I Help Families on Both Sides of the Issue
Whether you’re trying to avoid unnecessary guardianship or pursuing guardianship to protect a loved one who’s clearly in danger, you need sound legal advice.
I help families throughout Orlando and Orange County evaluate options, file legal paperwork, attend capacity hearings, and—when necessary—take urgent action to secure guardianship for an at-risk senior.
These are not cookie-cutter cases. Every family dynamic is different. Every financial situation is unique. My role is to understand your concerns and develop a legal strategy that protects your loved one while respecting their rights.
To get started, call my office at 1-888-640-2999 to schedule a consultation.
Frequently Asked Questions (600+ words)
Is guardianship always required when an elderly person starts forgetting things?
No. Florida law requires the court to consider whether a person can still manage their own affairs with help. Forgetfulness alone is not grounds for guardianship. If your loved one can still make informed decisions or has documents like a durable power of attorney or health care surrogate in place, those may be sufficient alternatives.
What happens if my parent refuses help but is clearly putting themselves at risk?
This is a common situation. If your parent refuses voluntary arrangements and is making unsafe decisions, you may need to ask the court to declare them incapacitated. This process involves a three-person examining committee and a hearing. If the court agrees that your parent cannot make safe decisions, a guardian may be appointed to protect them.
Can a power of attorney be used instead of going to court?
Yes—if it’s been properly executed and the person had capacity when they signed it. A valid durable power of attorney allows the agent to manage finances, pay bills, and make many legal decisions. It’s one of the strongest alternatives to guardianship, but it must be in place before incapacity begins.
What if my parent is being financially exploited and there’s no power of attorney?
If there’s evidence of exploitation, and your parent can’t understand what’s happening, filing for guardianship may be necessary. Florida courts take financial abuse seriously. As an attorney, I can help you gather documentation and petition the court for emergency or permanent guardianship if needed.
Are trusts better than guardianships for managing money?
In many cases, yes. A trust can be designed to manage assets without court involvement. The successor trustee steps in if the grantor becomes incapacitated. However, trusts don’t manage medical decisions—so a power of attorney or health care surrogate is still needed.
Can more than one person be appointed to help a senior?
Yes. Florida law allows co-agents under a power of attorney, co-trustees under a trust, or co-guardians (with court approval). Whether this is a good idea depends on the family dynamics and whether the individuals can work well together.
Does the court monitor what a guardian does with the elder’s money?
Yes. A guardian is required to file annual reports and an accounting of the ward’s assets. The court oversees the guardian’s decisions to make sure they are acting in the best interest of the senior. Mismanagement can result in removal or legal consequences.
How long does the guardianship process take in Florida?
If it’s uncontested and the paperwork is complete, it can take a few weeks to a few months. Contested cases or those requiring emergency action can move faster, but they’re more complex and may involve additional hearings.
What happens if my parent agrees to help but still wants some independence?
Voluntary guardianship may be the right solution. It allows your parent to legally appoint someone to manage their finances while retaining dignity and control. It’s also easier to terminate than a court-ordered guardianship.
Can I talk to you before deciding what legal route to take?
Absolutely. Every case is different. As an Orlando Guardianship Attorney, I’ll listen carefully to your concerns and help you understand your options under Florida law. To get started, call 1-888-640-2999 and schedule a consultation. I’ll help you make the right legal move for your family.
Contact Orlando Attorney Beryl Thompson-McClary at 1-888-640-2999 For A Consultation
If your loved one needs help managing their affairs and you’re unsure whether guardianship is the right step, let’s discuss the best legal option for your situation. I serve clients throughout Orlando and Orange County.
