Florida Estate Planning Lawyer Blog
Do I need Guardianship if I have a Power of Attorney in Jacksonville, Florida? Guardianship of an Adult is a legal tool that gives one person the ability to make decisions for another person. A Power of Attorney is also a legal tool that gives one person the ability to make decisions for another person. Both a guardianship and a Power of Attorney are generally only necessary when a person becomes incapacitated. A person becomes incapacitated when they are unable to make their own financial and healthcare decisions. The difference between a guardianship and a Power of Attorney is when and how they are established.
In Florida, a Guardianship can be established when an individual is no longer able to manage their financial affairs or make their own healthcare decisions. Guardianship can only be established through the Florida Court System. A judge decides who the guardian will be. Generally, a guardianship is used when there are no less restrictive means to make decisions on behalf of an individual.
A Power of Attorney is created while an individual still has the ability to make his or her own financial and healthcare decisions. A Power of Attorney is a written document, usually prepared by a Florida Estate Planning Lawyer, that permits you to choose who will make your financial and health care decisions when you cannot.
Do I need Guardianship if I have a Power of Attorney? The answer depends on whether the Power of Attorney document is sufficient to meet all the needs of the incapacitated person. A guardianship and a Power of Attorney can be over an individual’s property and/or over an individual’s daily life decisions. A Power of Attorney for property that is effective when the individual is incapacitated is called a Durable Power of Attorney. A Power of Attorney for healthcare decisions is called a Designation of Healthcare Surrogate.
A Guardianship of the Property and a Durable Power of Attorney allows another individual to make financial decisions for and manage another’s assets. A Guardianship of the Person and a Designation of Healthcare Surrogate allows another individual to make health care decisions for an incapacitated adult.
The main difference between the guardianship and a power of attorney is that a guardianship takes away the right of the individual to make decisions, while a power of attorney permits another to make decisions in conjunction with the individuals’ choices. There are times when it is necessary to remove the right to make poor decisions.
You might need a guardianship when a Power of Attorney is not sufficient. In this case, you would need a Guardianship over the Person and/or Property to also be able to make additional financial or healthcare decisions.
You might also need a guardianship when the Power of Attorney is limited. A Limited Power of Attorney may not permit you to make all necessary financial or healthcare decisions you need to make. In this instance, you might need a Guardianship of the Property and/or a Guardianship of the Person in order to adequately manage the incapacitated person’s assets or make all necessary health care decisions for the incapacitated adult.
A third reason you might need a guardianship is when you have a Power of Attorney, and you need to protect an incapacitated person from being taken advantage of. A Power of Attorney allows another individual to make decisions on behalf of another person jointly. A guardianship goes one step further and takes away an incapacitated person’s rights to make individual decisions on their own.
Contact the Law Office of David M. Goldman, PLLC at (904) 685-1200 to speak with a Jacksonville Guardianship Lawyer. A Florida guardianship lawyer can help you determine whether your Power of Attorney document is sufficient and whether you might also need a Guardianship.