It is a very common practice as people age for them to visit an attorney for estate planning and execution of a Power of Attorney in order for safeguards to be put in place and to select a trusted family member to manage their assets, should they ever become unable to do so themselves. Having a Power of Attorney in place should prevent the necessity of a guardianship from being needed, but unfortunately a Power of Attorney does not always prevent the need for a guardianship and this is why:
When a Power of Attorney is in place and the incapacitated person is being cooperative with the assistance he or she is receiving from their designated Power of Attorney and other family members, and as long as the designated Power of Attorney is only acting in the best interest of the incapacitated person, a guardianship should not be needed. However, if the incapacitated person is not being cooperative and is wasting his or her property by either giving it away, making bad purchase decisions or what have you, then the Power of Attorney does not give the authority necessary to limit the incapacitated person’s access to their property. Therefore, a guardianship would be needed in order to remove the incapacitated person’s right to manage their property.
Another reason why a guardianship may be needed when there is a Power of Attorney in place is when the designated Power of Attorney is not acting in the best interest of the incapacitated person and is instead using the property for his or her own interests. A guardianship may be needed to prevent the continued use of the Power of Attorney and/or to bring a lawsuit against the designated Power of Attorney. An incapacitated person may also be exploited when they become the victim of scams, so if this were to occur a guardianship may be needed in order to take away the incapacitated person’s right to contract.
A person’s property being wasted is not the only reason a guardianship may be needed when a Power of Attorney is in place. If the incapacitated person is refusing the care they need, then the only option might be a guardianship. Often times, when the incapacitated person is being cooperative, having care within the home or having someone who checks on the person regularly can prevent the need for a guardianship. However, when the incapacitated person becomes a danger to themselves or others by forgetting a pot on a hot stove, forgetting to take their medication, forgetting to eat, becoming a high risk of being the victim of a crime, being a danger to themselves and/or others while driving, ect., then a guardianship might be the only option.
According to Florida Law, you cannot make an individual have an unwanted visitor in their home or make them stay in an assisted living facility. Therefore, a guardianship may be needed in order to provide the incapacitated person with the needed care and observation they need in their home or within an assisted living facility.
In short, although doing effective estate planning and selecting a Power of Attorney can eliminate the need for a guardianship in most cases, it will not guarantee that a guardianship will still not be needed. If you believe your loved one is in need of a guardianship, contact the Law Office of David M. Goldman, PLLC today for a free initial consultation at (904) 685-1200.