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Power of Attorney Versus Guardianship in the Orlando, Florida Area

Power of Attorney or Guardianship: which is right for you to care for and manage a loved one’s person’s affairs and monetary affairs in the Orlando, Florida Area? 

Many people have a Power of Attorney of a spouse, father, mother, or relative. This document is usually drawn up by an attorney. You need to make sure the Power of Attorney that you have is valid under Florida law. Florida has specific requirements for a Power of Attorney. A Power of Attorney is also referred to as a POA. 

Many times, a family member uses a Power of Attorney to help a loved one with their affairs. However, sometimes, a person with the Power of Attorney may not be able to help their relative sell a house or enter a nursing home because the Power of Attorney does not meet the requirements under Florida Law. By that time, the relative may no longer be competent to issue a new Power of Attorney, and you must file for Guardianship. 

Further, if there are issues between family members over who should care for an elderly relative, then another relative may entice the elderly person to revoke the Power of Attorney. Further, even if the Power of Attorney is not revoked, if another relative files for guardianship, they may motion the court to revoke the Power of Attorney. 

In Florida Statute 709.2109(3) (2023), it provides that a Power of Attorney is suspended if any person files a petition to determine incapacity, however, an exception exists if the person who has the Power of Attorney is a parent, spouse, child, or grandchild. In those instances, the Power of Attorney can only be suspended if a verified motion is filed pursuant to Florida Statute 744.3203(2023). The grounds to file such a motion are that(a) the person who has the Power of Attorney decisions are inconsistent with the elderly relative; (b) the Power of Attorney is invalid; (c) the person who has the Power of Attorney has failed or cannot exercise their duties; (d) the person who has the Power of Attorney has abused their powers (e)-the elderly person’s property is in danger of being wasted, misappropriated, or lost. 

If the Court determines the elderly person is incapacitated, then the Court must determine if there are least restrictive alternatives to guardianship such as a Trust, Power of Attorney, or Health Care Surrogate. If there are not least restrictive alternatives, the Court signs Orders and Letters on Guardianship.      

If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. on 407-732-7620 and arrange an initial consultation. You may also visit my website at: https://www.annmariegildenlaw.com 

This article is for informational purposes only and does not form an attorney client privilege.