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Kari L. MacDonald, P.A.

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Guardianship and Durable Power of Attorney: 
Differences and Similarities

 

Q.  What is involved in a guardianship?

A.  A guardian is a person who can make personal and financial decisions for the person (ward). A guardian is a person appointed by the court to make decisions about health care and personal matters for an adult who is incapacitated or a minor. Under Florida law, there are certain steps that must be followed for a guardian to be appointed.   

When a guardian is appointed for a minor, the Guardianship process takes away the parents’ rights to make legal, health, and educational decisions on behalf of that child. Guardianship, unlike adoption, does not sever the parental rights or the parental relationship. 

Another instance when the court may appoint a guardian for a minor is when the parents die or become incapacitated and no guardian was named in their estate planning documents. Additional situations where the court may appoint a guardian are those where a child receives an inheritance, the proceeds or a lawsuit, or the benefits under an insurance policy.  

An adult guardianship will probably be necessary if the court determines that a person has become so impaired that he or she cannot make rational financial and health.  Guardianship is usually used as a last resort when the court sees that there is no alternative.   

In Florida, there are both voluntary and involuntary guardianships. A voluntary guardianship takes place when an adult is mentally competent, but unable to manage his or her own affairs. 

In the alternative, a person should have a durable power of attorney, trust, health care surrogate or proxy, or other form of pre-need directive. A guardianship may be avoided if a person has prepared one of these documents while he or she has the legal capacity to do so. A durable power of attorney is much less expensive to prepare than the cost of a guardianship proceeding. 

When you designate a durable power of attorney, you name a trusted friend or relative to handle your legal or financial affairs on your behalf if you become incapacitated. With a durable power of attorney in place, your agent may pay your bills, access your bank accounts, file legal actions on your behalf and make decisions about your medical care when you are unable to do so. It will stay in effect until you die or until you revoke it. 

Even if you have assigned an agent with a durable power of attorney, you retain the authority to handle your own affairs as long as you are mentally competent to do so. In addition, the agent cannot make decisions that explicitly go against your stated wishes, even if she sincerely believes doing so would be in your best interest.

The Law Office of Kari L. MacDonald

 

Tel:  813.655.1075
Fax:  813.681.9589

634 E Bloomingdale Ave
Brandon, FL 33511

info@klmlawoffice.com

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