How Families Can Plan Ahead with Powers of Attorney, Living Trusts, and Advance Directives in Orlando and Orange County
Protecting Independence in Orlando: Planning Ahead to Avoid Conservatorship
Here in Orlando, I work with families every day who are trying to do what’s best for a loved one. When someone becomes unable to manage their financial or personal affairs, Florida law allows a court to appoint a conservator (also known as a guardian of the property). But many people are surprised to learn that this process can be avoided altogether with proper planning.
I’m Beryl Thompson-McClary, an experienced Conservatorship Attorney in Orlando, and I’ve spent years helping families throughout Orange County and Central Florida avoid unnecessary conservatorships through proactive legal tools. If you’re concerned about protecting a loved one’s dignity and avoiding court involvement, I encourage you to call my office at 1-888-640-2999 to schedule a consultation.
I help individuals and families use Florida’s legal framework to take control before the courts have to. By putting the right documents in place—such as powers of attorney, living trusts, and health care advance directives—you can avoid the stress, expense, and limitations of a court-imposed conservatorship.
Let me walk you through what Florida law provides and how we can use it to help preserve your family’s independence and peace of mind.
What Is Conservatorship in Florida?
Although Florida generally uses the term “guardianship,” the concept of a conservatorship still applies—especially in cases where an adult is incapable of managing financial affairs due to age, illness, or disability. A conservatorship (or guardianship of property) gives another person court-approved authority to manage someone else’s finances.
Under Florida Statutes Chapter 744, this process begins when someone files a petition to determine incapacity. The court then evaluates whether the individual lacks the capacity to manage property or make personal decisions. If the court finds that the person is incapacitated, it may appoint a guardian of the person, the property, or both.
This is often referred to as plenary guardianship when all rights are removed, or limited guardianship if only certain rights are affected.
While the process exists to protect vulnerable people, it also takes away fundamental personal freedoms. For this reason, the court must determine whether less restrictive alternatives are available under Florida Statutes § 744.331(6)(b)before appointing a guardian. That’s where pre-planning becomes critical.
Why Avoiding Conservatorship Matters
Once a conservatorship is established, the person under guardianship (the ward) can lose significant legal rights. The guardian or conservator becomes responsible for managing their property, reporting to the court, and making key decisions.
While this system is necessary in some situations, it can also lead to:
- A loss of personal privacy
- Public court involvement in family matters
- Fees for court filings, attorneys, and guardian reports
- Disputes among family members
- Emotional distress for the person affected
As an Orlando Conservatorship Lawyer, my goal is to help you avoid this outcome wherever possible. Florida law supports that goal by recognizing a range of legal tools that can achieve the same objectives without involving the courts.
Durable Power of Attorney: A Key Alternative
A Durable Power of Attorney (DPOA) allows someone (the “principal”) to appoint another person (the “agent”) to manage financial and legal affairs. The key word is “durable,” meaning it remains valid even if the principal becomes incapacitated.
Under Florida Statutes § 709.2101–§ 709.2402, a properly executed DPOA can allow your chosen agent to:
- Access bank accounts
- Pay bills
- Handle real estate or business transactions
- Sign contracts
- Manage retirement and investment accounts
If your loved one has a valid DPOA, there may be no need for a conservatorship, because their agent already has the legal authority to manage property.
As your attorney, I’ll work closely with you to draft a DPOA that’s tailored to your needs and fully compliant with Florida law. I’ve helped many families use this tool to avoid the stress of court intervention when a loved one starts to decline.
Living Trusts: Managing Assets Without Court Oversight
A Revocable Living Trust is another powerful way to plan for future incapacity. In Florida, a person can create a trust, place assets into it, and designate a successor trustee to manage the trust if they become unable to do so.
Unlike a guardianship, a trust allows for private management of assets with no court involvement. The trustee can step in and continue to pay bills, manage investments, or sell property without the delays of court approval.
Under Florida Trust Code (Florida Statutes Chapter 736), trustees have fiduciary duties to act in the beneficiary’s best interests and keep clear financial records. That makes it easier to hold people accountable while avoiding the rigidity of conservatorship proceedings.
I’ve created living trusts for clients across Orlando who wanted a flexible and secure way to plan for the future. In some cases, I’ve also helped successor trustees take over smoothly when the original trustee could no longer manage the trust.
Health Care Advance Directives: Personal Decision-Making
While conservatorships usually relate to property, guardianship of the person may also be required if someone cannot make medical or personal care decisions. This, too, can often be avoided with proper planning.
Florida law allows adults to sign Advance Directives, which include:
- Designation of Health Care Surrogate
- Living Will
- Do Not Resuscitate Order (DNR)
Under Florida Statutes § 765.101–§ 765.404, a health care surrogate can make medical decisions on your behalf if you are unable to do so. The surrogate can access medical records, speak with doctors, and authorize treatment in line with your wishes.
These documents can significantly reduce the need for a court to appoint a guardian of the person. I regularly assist clients in putting these directives in place as part of a broader incapacity plan.
Florida Law Requires Courts to Consider Less Restrictive Alternatives
It’s not just smart planning—Florida law requires courts to consider whether less restrictive alternatives to guardianship or conservatorship are available.
Under Florida Statutes § 744.331(6)(b), the examining committee must evaluate and report whether tools like powers of attorney, trusts, or health care surrogates are in place and functioning.
If the court finds that a valid alternative is already working, it may dismiss the guardianship petition entirely. That means the person retains their rights, and no guardian or conservator is appointed.
As your Orlando Conservatorship Lawyer, I can file evidence with the court showing that these alternatives are sufficient and that your loved one does not need a guardian.
Who Should Consider These Legal Tools?
Anyone who wants to preserve control over their affairs should consider using these alternatives. In particular:
- Seniors concerned about memory loss or future illness
- Adults with chronic health conditions
- Parents of adult children with disabilities
- Families with high-value property or business interests
- Individuals estranged from some family members
Putting the right documents in place early helps ensure that your wishes are respected and reduces the chance of future court intervention.
How I Help Families in Orlando and Orange County
I handle conservatorship and guardianship-related matters across Orange County, and I regularly prepare powers of attorney, trusts, and advance directives for clients throughout Central Florida.
When you work with me, I take the time to listen to your family’s needs and walk you through your options. We’ll discuss what makes the most sense for your situation and prepare the documents in a way that ensures they will hold up if ever challenged in court.
By planning ahead, we can protect your independence—or that of someone you love—without the need for a conservatorship.
Why Choose Orlando Conservatorship Attorney Beryl Thompson-McClary
I’ve spent my career helping families maintain dignity, privacy, and control when it comes to legal decision-making. My work spans both sides of guardianship law—helping some families establish it when needed, and helping others avoid it altogether.
My clients choose me because I’m focused, responsive, and committed to making the law work for real people. When you schedule a consultation, I’ll give you clear, practical advice based on Florida law and your unique situation.
Contact Orlando Conservatorship Attorney Beryl Thompson-McClary at 1-888-640-2999 For A Consultation
Call us about avoiding conservatorship and preserving your family’s autonomy. We serve individuals and families throughout Orange County and Central Florida.
FAQs – Avoiding Conservatorship in Florida
What is the main difference between guardianship and conservatorship in Florida?
In Florida, the term “guardianship” is more commonly used, but conservatorship is often used to refer to guardianship of the property. The difference lies in what the guardian controls. Guardianship of the person involves decisions about daily care and medical treatment. Guardianship of the property (or conservatorship) involves managing finances and assets.
Can a durable power of attorney be challenged in court?
Yes. A family member or interested party may petition the court if they believe the person appointed as agent is abusing their power, is incompetent, or is not acting in the best interests of the principal. However, if the document was properly executed and the agent is acting within legal bounds, courts generally uphold it.
Do I need both a power of attorney and a living trust?
In many cases, yes. A power of attorney is useful for managing a wide range of financial and legal tasks, but it may not cover everything. A living trust provides more structure and continuity for asset management, especially for real estate, investments, and business interests. Using both together offers stronger protection and flexibility.
What happens if there is no power of attorney or trust in place and someone becomes incapacitated?
If no legal documents are in place and a person becomes unable to manage their own affairs, a family member or interested party must file for guardianship or conservatorship through the Florida probate court. This process involves medical evaluations, hearings, and ongoing court oversight.
Are online forms for powers of attorney valid in Florida?
Florida law has specific requirements for executing a valid durable power of attorney. This includes proper notarization and witnesses. While some online forms may include these requirements, it’s always safer to have an attorney review or draft the document to ensure it meets legal standards and your unique needs.
How can I make sure my healthcare surrogate will be recognized by hospitals in Florida?
Florida law requires that your healthcare surrogate designation be in writing and signed by you in the presence of two adult witnesses. Hospitals and medical providers are required to honor these directives, as long as the document meets the statutory requirements.
Can I name multiple people in my power of attorney or living trust?
Yes. You can name co-agents or co-trustees, or designate a successor in case the original person cannot serve. However, it’s important to consider whether they can work together and how disagreements will be resolved. An attorney can help draft the language clearly to avoid future issues.
Is a Florida trust private, or is it filed with the court?
One major benefit of a revocable living trust is that it’s a private document. It is not filed with the court, and administration of the trust occurs outside of probate unless disputes arise. This helps families manage assets discreetly and efficiently.
How often should I update these documents?
You should review your legal documents at least every three to five years, or after major life events—such as a move, marriage, divorce, or death in the family. Changes in Florida law or your own financial circumstances may also prompt a revision.
Contact Orlando Conservatorship Attorney Beryl Thompson-McClary at 1-888-640-2999 For A Consultation
Call us about avoiding conservatorship and preserving your family’s autonomy. We serve individuals and families throughout Orange County and Central Florida.
