Legal Guardianship vs. Power of Attorney in Florida

How this applies depends on the governing documents, the court’s orders and applicable Florida law. If someone you love is dealing with health or memory changes, you may be working out who can act right now. That is a hard spot, and you didn’t choose it. This guide explains how the two tools differ, when a court may look at an agent’s actions, and which papers to gather first.

Short answer: it depends on the documents and the court record

Whether an agent’s authority is affected depends on three things. They are when the power of attorney was signed, what it lets the agent do, and what the guardianship court has ordered.

Start by finding the original power of attorney, any later version, and every court filing in the case. Look for language showing the authority continues if the principal becomes incapacitated. A power of attorney is durable when it contains the statutory words or similar words showing that intent, under Fla. Stat. § 709.2104. A power of attorney that is not durable can end when the principal becomes incapacitated, under Fla. Stat. § 709.2109.

Don’t draw conclusions from one paper. Read the document, the court’s orders and the timeline together.

How a power of attorney and a guardianship differ under Florida law

A power of attorney is a private document. The principal names an agent to act for them. Under Fla. Stat. § 709.2101, this part of the Florida Statutes may be cited as the Florida Power of Attorney Act. Whether a person needs a guardian and what rights a guardian receives depends on the governing court orders and applicable Florida law (see Fla. Stat. § 744.331 and § 744.3215).

A guardian’s rights are limited. A guardian of an incapacitated person is a fiduciary who may exercise only the rights removed from the ward and delegated to the guardian, under Fla. Stat. § 744.361. Rights a court may delegate include the right to contract, to sue and defend lawsuits, to apply for government benefits, and to manage property, under Fla. Stat. § 744.3215.

Which one controls a given decision depends on the document’s terms, the court’s order and applicable law. Whether a guardian’s authority overlaps with an agent’s authority also depends on those same sources.

When an agent’s authority may be suspended during incapacity proceedings

A court may review an agent’s conduct, and a guardian may be among those who ask. Under Fla. Stat. § 709.2116, a court may construe or enforce a power of attorney, review the agent’s conduct, terminate the agent’s authority, remove the agent, and grant other appropriate relief. Whether a guardian may petition the court under that section depends on applicable law, the court’s orders and the facts of each case.

Agents also have records to keep. An agent’s duty to keep a record of receipts, disbursements and transactions depends on the governing documents, applicable Florida law and the facts of each case, under Fla. Stat. § 709.2114. Unless the document says otherwise, the agent need not disclose those records unless a court orders it or a listed person asks, including a court-appointed guardian. If asked, the agent may be required to comply within 60 days, or may instead provide a writing explaining why more time is needed and then comply within an additional 60 days; how this applies depends on applicable law and the facts of each case (Fla. Stat. § 709.2114).

A dispute alone may not be enough to suspend an agent’s power. Under Fla. Stat. § 744.3203, a dispute between the agent and the petitioner that is more appropriately resolved in another forum may not be a ground for suspension, depending on applicable law and the facts of each case. Fees can also be at stake in Florida probate litigation. A court may award reasonable fees to an agent who wins a challenge to a suspension, if the motion was made in bad faith. Whether fees are awarded depends on the facts of each case.

What happens to an existing power of attorney after guardianship is established

An existing power of attorney may remain in effect, be limited, or end. The result depends on its terms and the court’s orders. Under Fla. Stat. § 709.2109, a court’s determination that the principal is totally or partially incapacitated can bring a power of attorney to an end, though how that rule applies depends on the governing instrument, applicable Florida law and the facts of each case. The exception is when the court determines that certain authority stays exercisable by the agent.

Starting a court case to determine incapacity can also pause the agent’s authority. Under § 709.2109(3), an agent’s authority may be suspended until the petition is dismissed or withdrawn, or the court authorizes certain powers, depending on the type of petition, any emergency provisions, the court’s orders and the facts of each case. If the agent is the principal’s parent, spouse, child or grandchild, a verified motion under § 744.3203 may be relevant to whether the power of attorney is suspended, and how this applies depends on applicable law and the facts of each case.

A principal can revoke a power of attorney by a later signed writing, under Fla. Stat. § 709.2110. The questions to bring to an attorney are simple. Which document controls? What has the agent already done? Does the guardian’s authority overlap with the agent’s?

Common questions about guardianship and power of attorney

The effect of a court order on an agent’s authority depends on the order’s terms, applicable Florida law and the facts of each case.

Talk through your family’s documents with a Coral Gables attorney

Acting for a family member can come with pressure to decide quickly. Bring the power of attorney, any guardianship papers and a short timeline of events to a conversation with an attorney at Trust Counsel, PL. Our office is in Coral Gables, and we serve clients in Florida. Attorney Leslie V. Marenco can review how Florida law and your documents may apply. That review depends on the governing instrument and the facts of each case.

The first consultation is free, confidential and carries no obligation to continue. Fees are agreed between client and attorney according to the scope of work.

To talk through your family’s documents, call (305) 707-7126 or schedule online.