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Avoiding a Guardianship with a POA and Living Trust

Ask any estate planning attorney in Florida, and they will tell you all about the very basic estate documents which you need in your estate plan. Generally, you need a will, a revocable trust, a power of attorney (durable power of attorney) and health care documents. These estate plan documents, we are told, will help organize and manage your money, and your person, if you can’t do it yourself, such as if you are incapacitated from Dementia. These estate documents can serve to pass your money and property on to your chosen beneficiaries, like your family and loved ones.

Now, ask a Florida probate litigation attorney about an estate plan, or a guardianship lawyer in Florida, and they are most likely to speak to you about a growing trend in the law: guardianship litigation, what probate attorneys refer to as “contested guardianships.”

More specifically, guardianship litigation law firms in Florida will probably talk to you about the Guardianship Code, Chapter 744, and whether you can avoid, legally, a guardianship with a durable power of attorney and a living trust.

To read Florida’s laws on guardianship, please click here.

So, let’s say someone files for guardianship. Is a Florida guardianship necessary if you already have a reputable estate planning attorney, a solid estate plan ? The answer is “no”. As long as your estate plan adequately addresses your needs. That’s right, even if you are found to be incapacitated or incompetent. Even if a probate court rules that you are not competent and you, and your property, need some protection, you may still be able to avoid a guardianship legally. How? Well, if you have living trust, the trustee can manage your money and pay your bills. If you have a durable power of attorney, check out Chapter 709 of the Florida statutes on a power of attorney here.

Chapter 709 is all about powers of attorney and durable powers of attorney. Your POA can get your money, secure it, safeguard it, and then transfer it over to your trustee, so your money and property are invested and safeguarded. Your POA or your trustee can also pay all your bills, real estate taxes and file your IRS form 1040 to pay your income tax each year, along with your CPA.

If you have a health care proxy, or health care surrogate, or medical power of attorney or living will, those people named in the documents can make your health care decisions for you. In other words, you can, now, while you are competent, determine who is going to make decisions for you, manage your money, and assist you with health care matters when or if you are not able to. See, a good Florida estate plan is not just about leaving an inheritance when you die. You can avoid a guardianship, legally, if those documents, your estate plan documents, adequately address your needs.

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