When it comes to planning for incapacity or helping a loved one manage their affairs, people often confuse Power of Attorney (POA) with Guardianship. Both serve the purpose of allowing someone else to make decisions on behalf of another, but the differences are significant—and choosing the wrong path can lead to court intervention, family conflict, and costly litigation.
Let’s break it down.
What Is a Power of Attorney?
A Power of Attorney is a legal document where one person (the principal) voluntarily authorizes another person (the agent or attorney-in-fact) to act on their behalf. In Florida, this can include financial and/or legal, depending on the terms of the document. For medical decision-making, a Healthcare Surrogate is needed (see below).
There are different types:
- Durable POA: Remains in effect even after the principal becomes incapacitated.
- Medical or Healthcare Surrogate: Designated to make medical decisions when the principal cannot (referred to throughout this blog post as HCS so I don’t have to write out the whole title; sorry not sorry, guys).
- Limited POA: Only applies to specific actions or for a certain time.
Key features:
- Can (and well, SHOULD) be executed before someone becomes incapacitated.
- Requires the principal to understand what they’re signing.
- Flexible and cost-effective.
- Can help avoid court involvement—if done properly.
What Is Guardianship?
Guardianship is a court-ordered legal relationship where a judge determines that someone is incapacitated (in a private/confidential court proceeding through the Mental Health division) and appoints a guardian to make decisions for them. This process is often initiated when:
- No advanced directive exists (or when there is only one as between power of attorney and healthcare surrogate),
- The POA/HCS is invalid or contested, or
- The appointed agent is abusing their authority or unavailable.
There are two types:
- Guardian of the Person: Makes decisions about health, housing, and personal matters.
- Guardian of the Property: Manages financial affairs.
Key features:
- Requires medical evaluations and a court hearing (sometimes more than one if there is any litigation regarding whether the individual is incapacitated, or between petitioning guardians).
- Removes some or all of the individual’s civil rights.
- Involves ongoing court oversight, annual reports, and legal fees (the guardianship “ends” when the incapacitated individual regains capacity or dies).
- Often used as a last resort when less restrictive alternatives fail.
Why Choosing the Right One Matters
Choosing between POA and guardianship isn’t just a legal decision—it’s a practical and emotional one. Here’s why:
When a POA Works Best:
- The individual is still competent.
- There’s trust in the person being appointed, and any successors listed.
- Family is cooperative, and there’s no concern about future challenges.
Risk: If the POA is vague, outdated, a DIY form, or improperly executed, it may be rejected by banks or medical providers—or worse, it could be challenged by family members.
When Guardianship Becomes Necessary:
- No POA was ever signed.
- The person has already lost capacity.
- There’s evidence of financial exploitation or abuse.
- There’s a dispute among family members about what’s best.
Risk: Guardianship litigation can be emotionally draining, publicly aired in court, and financially burdensome. It can permanently alter family relationships.
How the Wrong Choice Can Lead to Litigation
Many guardianship cases start with good intentions—but spiral into litigation due to:
- Suspicion of undue influence in how a POA was signed.
- Sibling rivalries about who should make decisions.
- Disagreement about whether the person is truly incapacitated.
- Allegations of financial mismanagement by a POA agent.
Without clear planning and communication, families may find themselves in expensive legal battles—litigation that could have been avoided with proper estate planning guidance.
So, Which One Do You Really Need?
Sorry for the lawyer answer, but: IT DEPENDS. Start by asking yourself:
- Is the person still of sound mind?
- Do they trust someone to manage their affairs?
- Do you want to avoid court involvement?
If the answer is yes to all, a well-drafted POA may be all you need.
But if there are already signs of incapacity or conflict, consulting with a guardianship attorney is essential to determine whether court intervention is necessary—and how to proceed carefully.
In Conclusion (man, that brings me back to my pre-undergraduate essays… no better way to end it than with “In Conclusion…”)
Both Power of Attorney and Guardianship are tools to protect someone who can’t act on their own—but they are not interchangeable. One is proactive and private. The other is reactive and public. Choosing the wrong path—or (AAH!) doing nothing—can create unnecessary conflict and litigation (and of course, additional expenses and legal fees).
If you’re unsure which route is best, we’re here to guide you. Always.
