Power Of Attorney Vs Guardianship: What Is The Right Choice?

Many of our clients seek to know what is the difference between guardianship and power of attorney. This is an essential question when deciding on the future of a child or a family member who became incapacitated and is unable to handle their own finances or medical decisions. 

While both power of attorney and guardianship can help you account for the needs of vulnerable loved ones in these circumstances, these two legal instruments are slightly different. 

Let’s evaluate whether power of attorney vs guardianship is the right call for you. 

What Is The Difference Between Guardianship And Power Of Attorney?

Despite similar purposes, these two documents have distinctive differences, including:

• Initial costs: establishing a guardianship can be expensive as you’ll have to hire an attorney, and a medical expert, and enter into a lengthy court process. In contrast, power of attorney is fairly affordable and simple to establish.
• Level of control: to appoint guardianship over a family member, you need to go through the court system while you can establish a power of attorney on your own accord. 
• Privacy: since guardianship necessitates court involvement, the information is public, whereas you can keep your power of attorney completely private.

Let’s get into more detail of how power of attorney vs guardianship differ from each other. 

Power Of Attorney Explained

Power of attorney provides one person with the authority to make financial, healthcare, and other types of decisions on behalf of the principal if they’re incapacitated. While an ordinary power of attorney is rendered void if the principal is considered mentally incapacitated, a durable power of attorney remains effective even in this scenario. 

The scope of the agent’s authority is defined by the document. It can be broad and allow the agent to make various personal, financial, and property decisions on behalf of the principal, but you can also limit them to fulfilling only specific duties.

According to Florida Statutes, the agent can exercise the duties under the power of attorney until the principal’s death, until the principal revokes the document.

What Is A Guardianship?

A guardianship is a relationship authorized by the court, appointing a guardian to make financial or personal decisions for the incapacitated or underage person. The scope is limited by the court’s findings, meaning that the court will determine which type of decisions the guardian can make regarding the ward’s interests. 

So, what about the distinction between power of attorney vs guardianship?

It’s relatively simple:

If a person has executed a durable power of attorney, legally speaking, this is the least restrictive method of ensuring the principal’s needs are met. If the court determines that the power of attorney will suffice, the guardianship may be deemed necessary. 

Florida Statutes clarify this requirement. Any durable power of attorney documentation or trust amendments must be reported during the guardianship proceedings. If the legal instruments in question are valid or it’s determined there is a more favorable alternative to appointing a guardianship that addresses the ward’s needs, the power of attorney will stay effective. 

This is where the scope of the durable power of attorney matters as the court may grant the agent the power to act for the ward without the need to involve the court. 

What can be considered an incapacity?

In the legal setting, the court is responsible for determining the extent of a person’s incapacity. This occurs at a hearing where experts will evaluate the ward’s condition and clarify which rights the wards should retain. In addition, it’s necessary to establish the needs the individual in question can’t meet regarding their well-being, safety, and health. 

If the court finds the ward is unable to meet any safety, medical, financial, or legal needs because of their incapacity, a guardian will be appointed to take care of their needs for them.

To make certain the ward’s needs are fully accounted for, courts in Florida enforce strict reporting requirements. Thus, guardians are legally required to report their activities annually. These reports must also include filing fees to be considered valid. 

If the guardian fails to produce annual reports, they’ll be discharged from the role and the court will appoint another individual as a guardian.

Power Of Attorney Vs Guardianship For Child

If the person in question is underage, you may wonder whether a power of attorney or guardianship is the right choice. It depends but keep in mind that guardianship will limit the child’s ability to make essential life decisions. 

While it’s a good way to protect and provide care for a child with disabilities or cognitive impairments (even if they’re legally an adult), there’s a possibility that some issues may arise. The child will be at the mercy of the guardian and if they want to change their situation, they’ll have to file a petition with the court and provide a valid explanation of why they want the guardianship revoked.

On the other hand, power of attorney allows the child to sign over their legal rights to an agent of their own volition. The power of attorney, as we already mentioned, can be drafted to account for the same decisions as in guardianship, meaning it’s an option that provides the child with more freedom. 

Moreover, establishing a power of attorney is a much simpler process than going through the hassle of involving a court.

However, the biggest advantage of power of attorney over guardianship is that it can be revoked whenever the principal wishes. They can change their mind anytime, meaning they retain much more control over their life. 

Need Assistance Establishing A Power Of Attorney?

Regardless of whether you need support with guardianship litigation or setting a power of attorney, you need an experienced attorney in your corner. Having legal assistance when making these decisions is essential to properly account for the needs of your loved one so you should spare no expense. 

If you want to work with the best, get in touch with legal experts at Doane & Doane. Our efficiency and high level of legal knowledge are well known in Florida and we’ll bring the same level of passion and dedication to drafting a simple power of attorney document as we do to other, more complex matters.

Dial 561-656-0200 or fill out our contact form to schedule an appointment. 

Note: 

The information in this blog post is for reference only and not legal advice. As such, you should not make legal decisions based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.