A good Florida estate plan will always include planning for possible incapacity. A Durable Power of Attorney (DPOA) names a trusted person to make financial decisions for you, while an Advance Directive for Healthcare does the same for health decisions. But there are cases where even having a good DPOA is not enough to prevent guardianship.
Will POA prevent guardianship?
When might guardianship be needed even though there is a valid DPOA? If the person is incapacitated and refuses to leave his home. He could be a danger to himself through neglect or active self-harm. Or in the case of exploitation critical assets could be compromised. Maybe the alleged incapacitated person won’t give up the keys to her car even though she gets lost or has vision limitations. Basically a guardianship might be needed with a person who will not comply with those trying to help him and therefore puts himself at risk physically or financially. It is important to remember that the DPOA delegates rights to another person but does not remove the rights of the person signing. A guardianship is required to remove those rights from the alleged incapacitated person.
Capacity has different meanings in different legal contexts. We might talk about the capacity to make a will, or to sign a DPOA. There is also the capacity to make your own health care decisions. In the guardianship realm, 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 for the health care, food, shelter, clothing, personal hygiene, other care without which serious and imminent physical injury or illness is more like than not to occur.
In a Florida guardianship, the examining committee all meet with the alleged incapacitated persona 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.
In a situation where a guardianship is likely necessary, Florida Statutes provide that a guardian may not be appointed if the court determines there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. Florida Statute Section 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.”
In other words, the courts want to only do what is necessary to help the incapacitated person/ ward, not take all their rights away; and may even avoid a guardianship if other planning has been put into place. Will a POA prevent guardianship is not necessarily an easy question to answer.
Another reason that a guardianship may need to occur is because the alleged incapacitated person named multiple powers of attorney and they do not agree on a course of action.
In Florida you can name multiple agents under power of attorney, but that may not be a good idea. If a conflict arises, there is often no way to address the situation as both agents are in charge. Only a court can sort out situations like this one. 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 to name this child as agent. Attorneys (especially if they are not elder law attorneys) may not spend enough time with mom to correctly judge her capacity, or clients may use self -help such as an internet-downloaded form DPOA to create a confusing, multiple powers of attorney situation for a guardianship to sort out.
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 is in place, will be:
- Lack of awareness of one’s incapacity (mom or dad tries to fight admitting limits)
- Bad family member involved (exploiters or battling powers of attorney)
- Exploitation by an outsider (including phone and email scams)
If you have questions about whether a POA will prevent guardianship for you or your family, please call our office at 239-434-8557. If you would like to read more about guardianship, look here.