How to Avoid Guardianship with a Power of Attorney & Healthcare Surrogate

If your loved one can no longer manage his or her financial affairs independently, you have a few options for giving decision-making responsibilities to someone else. Guardianship is one option, but this might not be the right choice if the individual is still competent and able to understand legal documents. Power of attorney (POA) and healthcare surrogate (HCS) might, instead, be more appropriate. Here is how to avoid guardianship in the state of Florida.

When Is Power of Attorney the Right Choice?

The Florida Guardianship Law states that one cannot appoint a guardian until all other less-restrictive alternatives have been exhausted. Power of attorney is a popular option for a less-restrictive alternative to guardianship. However, the individual must be mentally competent and able to understand what he or she is signing at the time of assigning a POA. It’s important to arrange a power of attorney prior to deterioration if he or she has Alzheimer’s or another progressive disease, or during a period of lucidity. Otherwise, the courts may void a power of attorney agreement.

Power of attorney is preferable to guardianship in a few ways, including cost. It costs less to appoint a POA compared to getting a guardian appointed. POA also does not require a public court proceeding. The individual would appoint who they prefer and trust to manage their financial affairs as their POA. Guardianship, on the other hand, is something the courts may assign to someone the individual would not have otherwise chosen, which can take quite some time.

Pros and Cons of a Healthcare Surrogate

A healthcare surrogate can protect the rights to make medical decisions and receive healthcare information on behalf of someone immediately or while an individual is incapacitated. Assigning a healthcare surrogate can help you avoid the need for guardianship by giving someone else the legal ability to make your medical decisions for you. To assign a healthcare surrogate, you must execute a healthcare proxy appointing a trusted person, or agent, to make medical decisions for you in the event that you become incapacitated.

In most cases, having a healthcare surrogate avoids the need for a court hearing if the person who nominated a health care surrogate becomes incapacitated. The assigned healthcare agent can immediately step in and decide medical and treatment choices without involving a judge or jury. As long as the individual is 18 or older, of sound mind, and not under undue influence, he or she has the power to assign his/her own healthcare surrogate. Keep in mind, however, that an HCS can only make medical decisions, not financial or estate planning ones.

Future planning is crucial to guardianship avoidance. Speak to our attorneys today if you would like to establish a Power of Attorney or Health Care Surrogate.