Understanding the Legal Differences and Determining the Best Choice for Your Family
If you live in Orlando or the surrounding areas, you may find yourself in a situation where a loved one can no longer manage their personal or financial affairs. Whether it’s an aging parent, a special needs child turning 18, or a family member facing serious medical concerns, deciding between guardianship and power of attorney is an important legal decision.
I’m Beryl Thompson-McClary, a dedicated Guardianship Attorney in Orlando, and I provide experienced legal guidance in these matters. Whether you need to establish guardianship, enforce a power of attorney, or challenge an unfair legal arrangement, I can help you understand your options and protect your loved one’s rights.
If you need legal assistance with these issues, call my office today at 1-888-640-2999 to schedule a consultation. I represent clients throughout Orange County, Florida and am here to assist you with this critical legal matter.
Understanding the Difference Between Guardianship and Power of Attorney
Both guardianship and power of attorney are legal tools that can help individuals manage the affairs of a loved one. However, they are very different in purpose, legal process, and impact on personal rights.
A power of attorney is a voluntary agreement where someone (the “principal”) assigns decision-making authority to another individual (the “agent”). This allows the agent to handle financial, legal, or medical decisions on behalf of the principal.
A guardianship is a court-ordered arrangement that gives one person (the “guardian”) legal authority to make decisions for another individual (the “ward”) who has been declared legally incapacitated. Unlike a power of attorney, guardianship is typically involuntary and requires court oversight.
When Power of Attorney May Be the Better Option
A power of attorney is often the preferred choice when an individual is still mentally capable of making decisions but needs assistance managing their affairs. Examples include:
- An elderly individual who wants to designate a trusted family member to handle their finances in case of future incapacity.
- A person undergoing a medical procedure who temporarily grants a spouse or relative authority over financial matters.
- A business owner who wants a designated agent to sign legal documents on their behalf.
The key benefit of a power of attorney is that it allows the principal to retain control over their affairs and revoke the agreement at any time, as long as they remain mentally competent.
When Guardianship May Be Necessary
Guardianship may be required when a person lacks the legal capacity to make responsible decisions due to disability, illness, or cognitive decline. Florida law provides for guardianship in cases where:
- An adult with special needs turns 18 and requires continued legal oversight for their well-being.
- A senior citizen suffers from dementia or Alzheimer’s and is unable to manage their affairs.
- A person is in a coma or otherwise incapacitated with no prior power of attorney in place.
Under Florida Statutes Chapter 744, the courts determine whether guardianship is necessary by appointing an examining committee to evaluate the individual’s mental and physical condition. If the court rules that the person is legally incapacitated, a guardian is appointed to manage financial, healthcare, and legal matters on their behalf.
Legal Ramifications of Guardianship and Power of Attorney in Florida
Under Florida law, power of attorney is governed by Chapter 709 of the Florida Statutes. The principal has broad discretion in defining the agent’s powers, which can be limited or general depending on the document’s terms.
Guardianship, on the other hand, requires court oversight under Florida Statute 744.331, which mandates ongoing reporting and approval of major decisions by the court. Unlike a power of attorney, guardianship removes certain rights from the ward, making it a more restrictive legal arrangement.
Because guardianship involves a formal legal process, it can be expensive and time-consuming. However, it is often the only option when an individual is already incapacitated and cannot voluntarily appoint an agent under a power of attorney.
Choosing the Right Legal Solution for Your Loved One
If you are unsure whether power of attorney or guardianship is the right solution for your family, I can help you weigh the legal and financial implications of both options. As an Orlando Guardianship Attorney, I work with families to ensure that loved ones receive the necessary protection without unnecessary restrictions.
If you need to establish or challenge a guardianship or draft a legally sound power of attorney, contact my office at 1-888-640-2999 to discuss your case.
FAQs About Guardianship and Power of Attorney in Florida
What happens if someone becomes incapacitated without a power of attorney?
If a person does not have a power of attorney and becomes unable to make decisions, a family member or interested party must petition the court for guardianship. The court will then evaluate whether the individual is legally incapacitated and determine if guardianship is necessary.
Can a power of attorney override guardianship in Florida?
No. If a court appoints a guardian, the guardian’s authority takes precedence over a previously executed power of attorney. However, the court will review any existing power of attorney before granting guardianship.
Can a power of attorney be revoked?
Yes. As long as the principal is mentally competent, they can revoke a power of attorney at any time. This must be done in writing, and it is best to notify all relevant institutions to prevent unauthorized use of the revoked document.
How long does guardianship last in Florida?
Guardianship remains in place until the ward regains capacity (if applicable) or until the court determines that it is no longer necessary. A guardian can also be removed if they fail to fulfill their legal duties.
How do courts determine incapacity for guardianship cases?
The court appoints a medical examining committee, which evaluates the individual’s cognitive and functional abilities. Based on their findings, the court will decide whether full or limited guardianship is appropriate.
Does a guardianship cover financial and medical decisions?
It depends on the type of guardianship ordered by the court. Some guardianships cover both financial and healthcare decisions, while others may be limited to specific responsibilities.
How do I contest a guardianship appointment?
If you believe a guardian is not acting in the best interest of the ward, you can petition the court for a review. This can involve requesting a change in guardianship or proving that the ward is capable of making their own decisions.
Contact Orlando Attorney Beryl Thompson-McClary at 1-888-640-2999 For A Consultation
If you need assistance with guardianship or power of attorney in Florida, I can provide legal guidance to protect your loved one’s best interests. Call 1-888-640-2999 today to schedule a consultation and discuss your options.
