Why Proper Planning Can Protect Both Loved Ones and Your Legacy in Florida
Orlando families are made up of people from every walk of life—business owners, retirees, parents of children with special needs, and adults caring for aging parents. One question that consistently comes up in my law practice is this: how does guardianship fit into estate planning, and when should you consider both?
I’m Beryl Thompson-McClary, an Orlando Guardianship Attorney serving clients throughout Orange County. Whether you’re looking to create a plan that avoids court intervention or you’re seeking legal authority to care for someone who can no longer manage their own affairs, guardianship and estate planning often go hand in hand. I handle these matters from both sides—helping petitioners secure guardianship when necessary and helping families avoid it when planning is done the right way.
If you’re facing these issues or thinking about how to plan for them, I invite you to schedule a consultation by calling 1-888-640-2999. This is an area of law that deserves careful attention, and I’m here to guide you through it.
Why Guardianship Matters in the Context of Estate Planning
At the heart of every estate plan is a goal: protect the people and assets you care about. That includes planning for disability, incapacity, and the possibility that someone may not be able to handle their own financial or medical decisions in the future.
When no planning is done—or when plans are incomplete—the courts in Florida may have no choice but to step in and appoint a guardian. That can lead to delays, expenses, and disputes among family members.
Under Florida Statutes Chapter 744, a court may appoint a guardian for a minor or for an adult who is found to be incapacitated. Once guardianship is in place, the individual (called the “ward”) loses the legal ability to make certain decisions, and the guardian takes on legal duties defined by the court.
If estate planning had been done ahead of time, many of these situations could be avoided entirely.
Legal Tools That Can Help You Avoid Guardianship
As an Orlando Guardianship Attorney, I spend a significant part of my practice helping families avoid guardianship by using the right legal tools in their estate plans. Some of the most effective include:
- Durable Power of Attorney – This allows someone you trust to manage financial matters on your behalf. Under Fla. Stat. § 709.2101–.2402, a properly executed power of attorney can give your chosen agent broad authority and remain effective even if you become incapacitated.
- Designation of Health Care Surrogate – This document gives someone legal authority to make medical decisions if you are unable to. This is governed under Fla. Stat. § 765.101–.205.
- Living Will – A written directive that communicates your wishes regarding life-prolonging procedures. It’s one of the most important planning tools for avoiding court-ordered intervention during a medical crisis.
- Revocable Living Trust – This document allows your assets to be managed privately, outside of court, and can designate someone to take over management if you become unable to serve as trustee. This is particularly useful in high-asset and business-owner estates.
When these documents are valid, up to date, and specific, they often eliminate the need for the court to appoint a guardian. But when they’re missing or incomplete, the family may be forced to initiate a guardianship proceeding.
When Guardianship Becomes Necessary Despite Planning
Even with the best planning, there are situations where guardianship is the right legal solution. A few examples:
- A child with special needs reaches adulthood and lacks capacity to manage their own affairs.
- A person suffers a stroke or traumatic brain injury and has no valid power of attorney.
- An elderly parent is being exploited financially and needs court protection.
- A power of attorney was revoked, misused, or executed under questionable circumstances.
When this happens, I work with families to prepare and file a Petition to Determine Incapacity under Fla. Stat. § 744.331. If the court finds the individual lacks capacity, I then assist with the Petition for Appointment of Guardian and make sure the proposed guardian is someone trusted, capable, and willing to serve.
In some cases, a limited guardianship may be appropriate—where the ward retains some rights and the guardian only has control over specific decisions. In other cases, a plenary guardianship is needed.
The Role of the Guardian and the Impact on the Estate
Once appointed, the guardian takes on a fiduciary duty. That means they must act solely in the best interest of the ward and manage finances carefully, with oversight from the court.
Under Fla. Stat. § 744.361, guardians are required to:
- File an Initial Inventory of assets
- File annual accountings
- Seek court approval before making major financial decisions
- Avoid self-dealing or conflicts of interest
This level of oversight can be helpful when abuse is suspected—but it also creates complexity for families who are simply trying to do what’s best.
That’s why estate planning is so important. It gives you control now so others don’t have to guess or fight later.
Guardianship Planning for Special Needs Adults
Parents of special needs children face a unique challenge: what happens when your child turns 18?
Under Florida law, once your child reaches adulthood, you can no longer make legal decisions for them—even if they are severely disabled. That’s where Guardian Advocacy comes in.
This is a simplified form of guardianship under Fla. Stat. § 393.12, designed for adults with developmental disabilities. It allows a parent or trusted adult to be appointed as guardian without the full incapacity determination process.
As an Orlando Guardianship Attorney, I help families secure this form of guardianship—and also incorporate long-term planning tools like special needs trusts into their estate plans. These trusts help preserve government benefits while still allowing you to provide support over your child’s lifetime.
Estate Planning for People Already Under Guardianship
If your loved one is already under guardianship, it’s not too late to protect their interests. I often help guardians:
- Update beneficiary designations on allowable accounts
- Petition the court to create or modify trusts for the ward
- Address tax or Medicaid planning needs
- Seek court approval for gifts, transfers, or estate adjustments
Under Fla. Stat. § 744.441, guardians can request court approval to engage in estate planning on behalf of the ward. That may include preparing a will, establishing a trust, or modifying existing documents to better reflect the ward’s best interests and family dynamics.
Common Misunderstandings
There are several assumptions I regularly have to correct in guardianship and estate planning cases:
- My spouse will automatically be able to make all decisions if I’m incapacitated. This is false in Florida. Without a valid power of attorney or health care directive, even a spouse must petition the court for guardianship.
- Guardianship means total loss of independence. Not necessarily. Florida allows for limited guardianships where the ward retains some legal rights.
- Estate planning is only for the wealthy. Everyone can benefit from planning, even if your estate is modest. Planning saves your family time, stress, and money.
- Once you get guardianship, you can do whatever you want. Guardians are accountable to the court and can face removal or legal consequences for misconduct.
Florida Estate Planning With Guardianship Frequently Asked Questions
Can estate planning completely prevent the need for guardianship?
In many cases, yes. If you have a durable power of attorney, designation of health care surrogate, and a properly funded revocable trust, your loved ones can often manage your affairs without court involvement. But if those documents are missing, outdated, or improperly executed, guardianship may still be necessary.
Can I name a guardian in my will for my minor children?
Yes. Florida law allows you to nominate a guardian for your children in your last will and testament. The court will give great weight to your choice, but retains final authority to determine if the person is fit to serve. It’s critical to name both a primary and alternate guardian in case your first choice is unavailable.
What’s the difference between a guardian of the person and a guardian of the property?
A guardian of the person is responsible for the ward’s physical and medical care, while a guardian of the property handles financial matters. In some cases, one individual serves both roles. In others, separate people are appointed to avoid conflicts of interest or because the roles require different skill sets.
Can I appoint someone now to serve as my future guardian if I become incapacitated?
Yes. You can name a pre-need guardian under Fla. Stat. § 744.3045, and the court will strongly consider your nomination. This is an excellent estate planning tool because it allows you to control who takes over in case of incapacity—and helps avoid family disputes later.
Is court approval always required before a guardian makes changes to the ward’s estate plan?
Yes. Even if a guardian believes estate planning changes are in the ward’s best interest, they must petition the court under Fla. Stat. § 744.441. The judge will review the request to ensure it complies with Florida law and reflects the ward’s known wishes, capacity, and financial needs.
What is the role of a trust in guardianship planning?
Trusts are powerful tools in both preventing and managing guardianship. A properly drafted revocable trust can avoid guardianship by appointing a successor trustee to manage assets if the grantor becomes incapacitated. Special needs trusts, on the other hand, allow guardians to preserve Medicaid or SSI benefits for disabled adults while providing supplemental support.
Can someone challenge a guardianship or try to terminate it later?
Yes. Under Fla. Stat. § 744.464, interested parties can petition the court to review, modify, or terminate a guardianship. If the ward regains capacity or there’s evidence that guardianship is no longer necessary, the court can restore rights or appoint a new guardian if the current one is not acting in the ward’s best interest.
Contact Orlando Guardianship Attorney Beryl Thompson-McClary at 1-888-640-2999 For A Consultation.
If you’re concerned about your estate plan, caring for someone with special needs, or facing the possibility of guardianship in your family, take the next step toward clarity and protection.
Let’s make sure the people and property you care about are protected—on your terms.
