What is a Guardianship?

Written by Collett P. Small, Esquire on . Posted in Guardianship

A guardianship is the legal relationship that is created when a surrogate is appointed by a court to protect and exercise the rights of individuals whose disabilities prevent them from being able to make their own decisions and no lesser restrictive means of intervention are available. The person who is the subject of the guardianship is called a "ward". Except in the case of a minor, the ward must be adjudicated legally incapacitated and has had some or all of his or her rights removed. Rights which may be removed and delegated to a guardian include the following: the right to contract, to apply for government benefits, to sue and defend lawsuits, to manage property, to gift or dispose of property, to determine residence, to consent to medical or mental health treatment, and to make decisions concerning one's social environment. However, some rights such as the right to marry or to obtain a driver's license may not be delegated to a guardian.

Florida Durable Power of Attorney as an Advanced Directive

Written by Collett P Small. Esquire on . Posted in Power of Attorney

A Durable Power of Attorney (DPOA) is a powerful legal document by which one person (the "principal") appoints another person ("agent" or "attorney in fact"), to act on their behalf. Authority is conferred on the agent to perform certain acts or functions on behalf of the principal, such as executing contracts, applying for benefits, buying or selling real estate and handling bank accounts. The extent of the powers granted by the DPOA depends on the language of the document itself. An agent does not need to be an attorney as some believe the name suggest. However, the agent has to be a competent adult whom the principal trusts and should be someone who is familiar with the principal's wishes.

A well written and properly executed DPOA may serve as an advanced directive and avoid the need for guardianship proceedings should the principal later become incapacitated. Compared to a guardianship a DPOA provides the element of control as it allows the principal control over who can make decisions on their behalf, as well as, over the powers an agent is allowed to exercise. In guardianship proceedings these decisions are usually made by a Judge. No judicial proceedings are necessary to establish a DPOA.