Guardianship vs. Power of Attorney in Florida
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A durable power of attorney is a private document you sign while you have capacity, naming who will manage your finances. A guardianship is a court proceeding started after someone has lost capacity, where a judge decides who will act and supervises them. The right documents usually make guardianship unnecessary.
| Durable power of attorney | Guardianship | |
|---|---|---|
| Who chooses the decision-maker | You | The court |
| When it's created | While you have capacity | After capacity is lost |
| Court involvement | None | Petition, examining committee, hearing, annual reports |
| Privacy | Private | Court record |
| Cost | One-time planning cost | Legal, court and ongoing reporting costs |
| Governing law | Chapter 709 | Chapter 744 |
How a Florida power of attorney works
A Florida durable power of attorney must be signed with two witnesses and a notary (§ 709.2105). It is effective when signed; Florida no longer allows new "springing" powers that start only upon incapacity. Certain powers, such as making gifts or changing beneficiary designations, must be separately initialed. Pair it with a health care surrogate designation for medical decisions.
How a Florida guardianship works
A family member files a petition to determine incapacity. The court appoints a three-member examining committee, holds a hearing and, if needed, appoints a guardian of the person, property or both. The guardian files an initial plan and annual reports and accountings, and needs court approval for many decisions.
When guardianship is still needed
Guardianship may be necessary when no documents exist, when an agent is abusing their authority, or when a person with capacity issues is at risk. You can also sign a preneed guardian designation (§ 744.3045) naming who you'd want if a guardianship is ever required.
Learn more about a Florida durable power of attorney or read how a Florida power of attorney can be revoked.
Talk with a Florida estate planning lawyer
Trusted Elder Law & Asset Protection helps families in Pensacola, Escambia, Santa Rosa, Okaloosa and Walton counties plan ahead. Call 850-607-2222 or schedule a free Peace of Mind Strategy Session.
This article is general information about Florida law, not legal advice for your situation.
