Power of Attorney vs Guardianship in Florida

Attorney Jason Neufeld discusses the differences between Power of Attorney and Guardianship in Florida. Do you know which is best for your family? Learn more about Power of Attorney 👇
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Transcript:

This video is focused on power of attorneys versus guardianship.
What's the difference? What are the processes like?

I want to start with guardianship because, you know, some people get confused with what guardianship is. Think of guardianship, you know, if you have children, when they were under the age of 18, you were by law, their legal guardian. They couldn't sign their name themselves, they couldn't sign a contract, they couldn't open up a bank account, they couldn't pay bills, they couldn't do anything without you because you were their legal guardian.

Then they turned 18 and they became adults, and they became guardians of themselves, and you don't have to file anything, it just happens automatically. That's the way our law is set up. But you were at one point in time, if you have children, you are somebody’s legal guardian.

Now, fast forward to after someone has turned 18 typically when they're much older, but let's say someone has become incapacitated. Whether it's through a car accident or a stroke, or just Alzheimer's has progressed. Right, they become incapacitated and become unable to take care of themselves.

If you don't have a power of attorney, which we'll get into in a second or a well drafted power of attorney. You're then back into legal guardianship except, it's no longer automatic. Now once someone has turned 18 if you want to become someone's legal guardian, you have to go to court, you have to pay a lawyer thousands of dollars to go to court and get a judge to rule that yes, this person does not have the ability to make decisions. And yes, you are the right person to be making those decisions for them.

Then you can do things like pay bills, sign their names, and do things like estate planning and Medicaid planning for them, under a judge's supervision. Guardianship is not always all that bad, right? If you're concerned about family members who might not help or other people who are not going to trust with having this sort of access to your resources... A legal guardianship is good, because they can't do anything without a judge saying so.

So it has its positives, but it's most often not anyone's first choice. If no other reason that it's just simply so much more expensive and time consuming to go through that process. When instead of guardianship, you could have decided yourself who is going to make decisions for you by executing a well drafted durable power of attorney.

Now sometimes I have people come to me with poorly drafted powers of attorney or free forms they get off the internet that allowed them to do some things, but they don't allow them to do other things, especially things that are needed for asset protection planning and getting people help with their long term care, home care, ALF care, nursing home care, things like that. We have a lot of bad powers of attorney and sometimes because there's a bad power of attorney, we're back into the world of legal guardianship, because that's the only trajectory by which we can achieve our goals.

Now, instead of going through all that legal guardianship process, I prefer to see my clients with a well drafted enhanced durable power of attorney, which we do. Which basically says here's the person that I want to be able to make decisions for me, it might have a backup, right? If that person can't do it, for whatever reason, we can list somebody else. And we say even if I become incapacitated, which is what makes the power of attorney durable, it endures even if you become incapacitated, here are the things that I want my agent or attorney in fact, that's the person who make the decision maker in a power of attorney. Here's what I want my agent or attorney in fact to be able to do.

This is really the reason why generic forms aren't good because you can't just say they can do anything they want...