Can a Durable Power of Attorney be signed if a Guardianship is needed in Florida? A Durable Power of Attorney is a legal document that allows a competent adult to decide whom can make financial and healthcare decisions for them when they cannot. A competent adult can make his or her own financial and healthcare decisions, also referred to as having capacity. A Guardianship is established when an adult no longer has capacity and is set up through the Florida Court System. Through the Florida Court System, a Court decides who will make financial and healthcare decisions for an individual who no longer has capacity. The person appointed to make financial and healthcare decisions for the individual is a guardian.
Let’s take the following for example: Your mother’s doctor just informed you she is no longer has capacity. You need to become your mother’s guardian because she does not have a Durable Power of Attorney. However, can a Durable Power of Attorney be signed if a Guardianship is needed?
In Florida, the Guardianship Process begins when a Petition for Appointment of Guardianship and a Petition to Determine Incapacity are filed with a court. At the time the petitions are filed, an allegation is made that an individual no longer has capacity. Whether or not someone has capacity remains an allegation until after a court rules on the Petition to Determine Incapacity. A Judge is the only person who can determine if someone has the capacity to make their own financial and healthcare decisions. Additionally, a guardianship cannot be established until after a court makes a ruling on the Petition to Determine Incapacity.
A Durable Power of Attorney can be signed in Florida any time someone has the required capacity. As long as the individual signing the Power of Attorney is over 18 years of age, understands the powers they are delegating, knows whom they are entrusting the powers to, and how delegating that power can affect the property subject to the Power of Attorney they have the capacity needed to sign a Durable Power of Attorney.
In essence, this means any time before a court rules on the Petition to Determine Incapacity, an individual can sign a Durable Power of Attorney if they have the capacity described above.
In the example above, while you know your mother does not have capacity most of the time, you also know there are times when she can make her own decisions. These are referred to as lucid moments. During a lucid moment, as long as your mother understands the powers she is delegating, whom she is delegating them to, and how delegating those powers can affect her property, she might be able to sign a Durable Power of Attorney before a Court has determined she does not have capacity.
The Third District Court of Appeal defined a lucid moment in American Red Cross v. Estate of Haynsworth, Jr., 708 So.2d 602, 606. A lucid moment is a period in which an individual returns to a state of understanding.
When determining if an individual can sign a Power of Attorney if a Guardianship is needed, you need an experienced Florida Estate Planning Lawyer and an experienced Guardianship Lawyer. Having an attorney familiar with both areas can help you determine if a guardianship is your only option. Contact the Law Office of David M. Goldman, PLLC today.