Rockville, MD asked in Elder Law for Florida

Q: Is a POA the same as guardianship? Differences please. This is for a person who is competent and in a nursing home.

My sister is in a nursing home in Pensacola, FL. They advised me to seek guardianship or POA. What are the differences and limitations or each? I live in Maryland.

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2 Lawyer Answers
Phillip William Gunthert
Phillip William Gunthert
Answered
  • Elder Law Lawyer
  • Orlando, FL
  • Licensed in Florida

A: You may find this list helpful as a reference possibly and for guidance.

Power of Attorney v. Guardianship

The POA agent (appointed person) is chosen by the principal (the one who appoints authority or giving POA) The guardian (appointed person) is chosen by the court.

Less expensive POA compared to More expensive Guardianship.

Requires document completion by the principal. Guardianship Requires court hearings with court and judge.

Types include general, limited, durable, and springing. Guardianship may cover three specific wards: children below 18 years old, mentally disabled adults, and incapacitated senior citizens.

The scope of power and responsibility is outlined by the principal in a POA. The scope of power and responsibility is outlined by the court for a Guardianship.

Main limitation: not honored by all institutions unless properly drafted in accordance with state law. Guardianship Main limitation: the court is given the full power to assign guardianship regardless of personal preferences.

I will also add, proper estate planning should be put in place as well, as in Florida Healthcare Surrogate, Living Will, HIPAA Waiver and so forth along with POA so that any issues that may arise are indeed addressed.

Terrence H Thorgaard
Terrence H Thorgaard
Answered
  • Estate Planning Lawyer
  • Freeeport, FL
  • Licensed in Florida

A: The main difference is that, unless the POA is a durable power of attorney, it can be revoked at any time by the principal (your sister). A guardianship, as Mr. Gunthert advised, would require going to court, thus would be more expensive.

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