Estate Planning

Can a Durable Power of Attorney be signed if a Guardianship is needed in Florida?

By David M. Goldman

Can a Durable Power of Attorney be signed if a Guardianship is needed in Florida? A Durable Power of Attorney is a legal document that allows a competent adult to decide whom can make financial and healthcare decisions for them when they cannot. A competent adult can make his or her own financial and healthcare decisions, also referred to as having capacity. A Guardianship is established when an adult no longer has capacity and is set up through the Florida Court System. Through the Florida Court System, a Court decides who will make financial and healthcare decisions for an individual who no longer has capacity. The person appointed to make financial and healthcare decisions for the individual is a guardian.

Let?s take the following for example: Your mother?s doctor just informed you she is no longer has capacity. You need to become your mother?s guardian because she does not have a Durable Power of Attorney. However, can a Durable Power of Attorney be signed if a Guardianship is needed?

In Florida, the Guardianship Process begins when a Petition for Appointment of Guardianship and a Petition to Determine Incapacity are filed with a court. At the time the petitions are filed, an allegation is made that an individual no longer has capacity. Whether or not someone has capacity remains an allegation until after a court rules on the Petition to Determine Incapacity. A Judge is the only person who can determine if someone has the capacity to make their own financial and healthcare decisions. Additionally, a guardianship cannot be established until after a court makes a ruling on the Petition to Determine Incapacity.

Full post as published by Florida Estate Planning Lawyer Blog on September 24, 2018 (boomark / email).