What Is the Difference Between Guardianship and Power of Attorney in Florida?
When a loved one can no longer handle their personal or financial matters, families often have to make difficult legal decisions. Two legal options in Florida that are frequently confused are guardianship and power of attorney (POA). Understanding the difference between the two can help families in protecting their loved ones and avoiding unnecessary legal disputes.
In this article, our Tampa guardianship attorneys at Bleakley Bavol Denman & Grace explain in simple language the difference between guardianship and power of attorney in Florida.
What Is a Power of Attorney in Florida?
A power of attorney is a legal document where a legally and mentally competent person (the principal) willingly grants another person (the agent) the authority to act on their behalf. Powers of attorney are governed by Florida Statutes Chapter 709 (Powers of Attorneys and Similar Instruments).
In Florida, a POA can be either broad or limited. For example, an agent may be given the power to perform specific tasks such as managing bank accounts, paying bills, or making investment decisions, or the power to make all financial and legal decisions.
A vital thing to note about a POA is that this legal document does not remove the principal’s rights. As long as the principal remains competent, they can revoke the POA, amend the document, or continue making decisions on their own.
What Is Guardianship in Florida?
Guardianship is a legal process that is overseen by the court. This process is used when an individual is determined to be incapacitated and unable to make their own decisions. Guardianship matters are governed by Florida Statutes Chapter 744.
Unlike a Power of Attorney, guardianship is not a voluntary arrangement. It requires a court proceeding where medical professionals assess the alleged incapacitated individual, and a judge decides if the individual is legally incapacitated and needs a guardian.
There are different types of guardianship in Florida, as detailed in Chapter 744, including:
- Guardianship of the Person: When a person cannot make decisions regarding their personal needs, such as daily care and healthcare.
- Guardianship of the Property: When an individual can’t handle their financial matters.
- Plenary Guardianship: When a person cannot manage any aspect of their life, requiring a guardian to oversee both personal and financial decisions.
- Limited Guardianship: When an individual can manage some aspects of their life but needs help with specific areas.
Since guardianship involves removing specific legal rights, Florida courts treat it as a last resort.
Differences Between Guardianship and Power of Attorney
Here are the key differences between guardianship and power of attorney:
- Consent and Capacity
- POA: Requires the principal’s consent and mental and legal capacity.
- Guardianship: Applies when the individual is deemed incapacitated and cannot consent
- Court Involvement
- POA: Does not need court supervision.
- Guardianship: Requires court oversight
- Control
- POA: The principal remains in control and can revoke or amend the document anytime
- Guardianship: Your rights are diminished or removed, and a judge decides who manages your affairs.
- Cost and Complexity
- Guardianship is typically costlier and more time-consuming due to court involvement.
Which Option Is Right?
Whenever possible, a well-drafted POA is usually the better option as it allows the principal to remain in control. However, in cases of incapacity, guardianship may be necessary to protect a vulnerable person.
Contact BBDG Law
For help understanding the differences between Powers of Attorney and Guardianship or determining which option to choose, contact our Tampa guardianship attorneys at Bleakley Bavol Denman & Grace.
Source:
leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709.html
