Most guardianships are created in difficult situations, such as when someone has not done their estate planning correctly, including creating a durable power of attorney, and they become incapacitated and unable to manage their own financial or legal affairs. Here are some ways that estate planning can help prevent elder exploitation. When this occurs, a family member or other qualified person can petition the court to become guardian in order to manage that person's affairs.  But many people do estate planning in order to prevent a guardianship. While the concept of estate planning is pretty broad, it mostly means creating your incapacity planning documents, but it can also mean creating a last will and testament and/or revocable living trust. Here, the durable power of attorney is the most important document that will generally prevent a guardianship when the creator becomes incapacitated.  But why and when would a guardianship still be needed when a durable power of attorney was created when the incapacitated person was competent?

How Does a Durable Power of Attorney Help Prevent a Guardianship?

A durable power of attorney gives the nominated agent of your choice the ability to make your financial and legal decisions.  Importantly, the power of attorney is active once you sign it, meaning you must trust your nominated agent - a power of attorney is the power to steal (illegally, of course). The key here is that the durable power of attorney is only a delegation of your rights, but it does not take away your own rights to make your own financial and legal decisions (otherwise, no one would create one!).

True Story: Dad names Son as his attorney-in-fact (his "power of attorney"). Dad is failing physically but is mentally capable - and he does not want to leave the home he has lived in for many years. Son thinks that he can force Dad to move out of the home - the Son actually tells Dad - "I am your power of attorney, I can do what I want." But because the power of attorney only delegated Dad's rights, but did not take them away, the Son cannot force Dad to do anything at all as his power of attorney.  The only entity that can force someone to do something is the court system through the guardianship process.

We generally say that a power of attorney delegates someone's rights, where the guardianship process takes away (some or all) of their rights away. This is the key distinction between the power of attorney and guardianship process.

Circumstances When a Durable Power of Attorney Cannot Prevent a Guardianship

While many of us create our estate plan in order to prepare for our death or incapacity, even the best estate planning cannot always prevent a guardianship action. Here, assuming Dad has created a durable power of attorney, a guardianship could be needed in some of the following cases:

  • Dad is incapacitated and he refuses to leave his home and he is a danger to himself. 
  • Dad is incapacitated and he revokes the power of attorney he previously gave his son.
  • Dad is incapacitated and he wants to name his "bad son" as his power of attorney.
  • Dad is incapacitated and he is being exploited by an outsider.
  • Dad is incapacitated and he wants to keep on driving his car.

In all of these situations, until Dad's rights are removed through a guardianship action, Dad retains all of his rights - which includes the rights to make bad decisions, such as being a danger to himself at home alone, wanting to revoke the power of attorney he has, wanting to name a bad actor as his power of attorney, or being exploited by another person. Remember, the power of attorney Dad previously created does not stop Dad from making his own bad decisions - and the attorney-in-fact is [mostly] powerless to stop a situation like this.

What is Incapacity for Guardianship Purposes?

Capacity can mean different things in different legal contexts. For instance, there is the:

In the guardianship world, the definition of an “incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. Further,

  • To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
  • To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.

In a Florida guardianship, the examining committee all meet with the alleged incapacitated person (AIP) and a hearing is conducted to determine incapacity. But just because someone is incapacitated under these rules, the court will not create a guardianship if there is a lesser restrictive alternative available.

What is the Least Restrictive Alternative?

In a situation where a guardianship may be necessary, Florida Statutes state that a guardian need not be appointed if the court finds there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. Similarly, Florida Statute §744.2005, provides that:

“The order appointing a guardian must be consistent with the incapacitated person’s welfare and safety, must be the least restrictive appropriate alternative, and must reserve to the incapacitated person the right to make decisions in all matters commensurate with the person’s ability to do so.”

The big picture is that the courts will only do what is necessary to help the incapacitated person/ward, not take away all rights under every situation, and may even avoid a guardianship if other planning has been put into place.  As an example:

Husband names Wife as his durable power of attorney. Husband's daughter from a previous marriage does not get along with her step-mother. Husband is having cognitive issues due to his advancing dementia.  Daughter thinks her father is spending too much of his own money on his health care so she files a guardianship action to try and make Dad's financial and health care decisions. In the guardianship hearing, Florida law says that the judge must look at the entire situation, especially the previously created Durable Power of Attorney, and must assess whether a guardianship is worth the expense and intrusive aspects of taking away Husband's rights.  If, for instance, Husband is safe at home and his Wife is making good decisions, the court will likely not appoint a guardianship, even if Dad does not have capacity to make his own decisions.

The Battling Powers of Attorney

Another reason that a guardianship may need to take place is that the alleged incapacitated person (AIP) named multiple powers of attorney and they do not get along. In Florida, you can name multiple powers of attorney, but that is not always a good idea. If a conflict arises, there is often no way to address the situation as both attorneys-in-fact are in charge.  Only a court can sort situations like this out, and if the situation is particularly difficult, like one person is stealing the AIP's money, an emergency temporary guardianship may be needed or an elder exploitation injunction may be sought.

Another example of the "battling powers of attorney" is when the children are arguing over the elder. One child takes mom, who has diminished capacity, to one attorney to create documents, then another child finds out about mom and takes her to another attorney to revoke the documents and name this child as the power of attorney. Attorneys may not be able to judge their client's capacity and in a situation like this, a guardianship may be necessary.

What about Health Care Decisions for an Incapacitated Person?

Just like the power of attorney does not take away your rights to make your legal and financial decisions, just because you cannot make your own health care decisions does not mean that a guardianship needs to take place. In these situations, we typically think about someone having a stroke without creating a designation of health care surrogate. If this happens, Florida law allows the health care proxy to step in and make someone's health care decisions when they are incapacitated.  But, if the person who is incapacitated refuses to accept their incapacity, a guardianship may still be necessary in order for someone to allow for living in the right health care environment, for instance. Also, if family members do not agree to the medical treatments, a guardianship may be necessary.

The Common Thread

Guardianship law is complicated, so every situation where a guardianship may be necessary is difficult to pin down, but the common thread for needing a guardianship, even when proper estate planning took place, is going to be:

  • Lack of awareness of your own incapacity (i.e., Mom or Dad not recognizing their own incapacity and trying to fight it)
  • Bad family members involved (i.e., the bad son trying to take over Mom's finances for his own gain, or the battling powers of attorney)
  • Exploitation by a bad actor (the Nigerian e-mail scammer Mom is sending all of her money to)
  • Disagreement between family members with a health care proxy (when no financial matters are present)

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