When a close relative is no longer able to manage his or her own affairs, many difficult choices must be made. One of those is the type of authorization necessary to handle one’s affairs for them – the two most obvious being guardianship and power of attorney (POA).
As a Ft. Lauderdale guardianship lawyer can explain, the terms are sometimes referred to as interchangeable, but in fact they confer very different rights for very different purposes.
Both power of attorney and guardianship can be used when a person is unable to pay their bills, cash checks or make important decisions. One can obtain both guardianship and power of attorney, but sometimes only one or the other is necessary.
Obtaining Power of Attorney in Florida
Power of attorney refers to the ability of one person to act as the other in certain financial matters. It is critical that the person who signs a power of attorney form be mentally competent at the time the form is signed, meaning he or she must understand what exactly it is they are signing. It may be necessary to obtain the medical opinion of a physician to ascertain “capacity” if there is or could be any possible doubt (particularly if one has a condition like Alzheimer’s disease, in the early stages of which capacity might come and go). A Florida estate planning attorney can help you determine if a competency exam is necessary. Although some are loathe to seek assistance in such matters because of the upfront cost, the costs on the back end can be much higher if questions arise later.
In most cases, what you’ll want to strive for is durable power of attorney. Absent durable power of attorney, the person designated as the “agent” (person receiving the power) will lose any and all power to act if the maker in turn becomes incapacitated. Because this is why the agent’s assistance is necessary in the first place, most estate planning lawyers will advise durable power of attorney. This is yet another reason to involve an attorney in the process (despite thousands of boiler plate examples found online). To ensure what you have is durable power of attorney, very specific language must be included.
A person designated as an agent with power of attorney is allowed to:
- Write checks for the maker;
- Sell the maker’s property;
- Incur debts in the maker’s name.
Sometimes the only assistance the maker is needs is help with managing their Social Security check and basic living expenses.
An experienced estate planning lawyer can help you draw up and execute the proper paperwork for durable power of attorney.
Obtaining Guardianship in Florida
Guardianship rights are more extensive than power of attorney, reserved for cases in which an individual is incapacitated and can no longer (or was never able) to understand and make important decisions for themselves. One must be appointed as a guardian by a court of law, and in this, you will need a guardianship lawyer to assist in establishing those rights.
There are several different types of guardianship:
- Guardian of the person. This is a person appointed when individuals cannot care for their own personal needs (usually in the medical sense).
- Guardian of the estate. This is a person appointed when individuals cannot handle their own business or financial matters.
- General guardian. This is one who acts in the capacity of both roles.
Courts can appoint a guardian to a person only after after being presented with considerable evidence that he or she lacks capacity to manage his/her own personal affairs, to make/communicate with regard to important decisions about family, health or property/finances.
Courts will appoint an attorney at the competency hearing for the person over whom guardianship is sought. Sometimes a hearing is all that is necessary, but a broad evaluation or even a jury trial may be required in some cases.
If you have questions about which type of paperwork should be filed in your case, our dedicated Ft. Lauderdale guardianship lawyers can assist you.
Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Guardianship or Power of Attorney: Which One Do You Need?, Wake University School of Law