Guardianship or Power of Attorney in Florida: Know the Difference Before You Need It

A power of attorney and a guardianship both let someone else make decisions for a person. The main difference is timing. A power of attorney is a document a person signs while they still have legal capacity. A guardianship is a court case used when that document isn’t enough, or was never made.

This page explains how each tool works so you can see which one may fit your family. Robinson Casey focuses exclusively on Marchman Act petitions and guardianship matters for families in Miami-Dade, South Florida and statewide. Richard J. Casey III, Esq., is the responsible attorney for this page.

What a Florida Power of Attorney and a Guardianship Each Do

A power of attorney lets a person choose someone to act for them ahead of time. A guardianship is a court-supervised process that steps in when that choice was never made or can no longer be used.

A power of attorney has two key people. The principal signs it, and the agent is the person named to act. The agent must be a natural person who is 18 or older, or a financial institution that has trust powers, a place of business in Florida, and authority to conduct trust business in Florida (Fla. Stat. § 709.2105).

Legal capacity means the ability to understand what you’re signing and what it does. That’s why timing matters. Questions about powers of attorney and a person’s capacity depend on the facts of each family’s situation, so it helps to discuss them with an attorney. To keep working after the principal becomes incapacitated, the document needs durable language (Fla. Stat. § 709.2104).

So what’s more powerful? When a petitioner files a motion during proceedings to determine incapacity but before the court enters an order determining incapacity, the authority granted to a parent, spouse, child, or grandchild under an alleged incapacitated person’s power of attorney is suspended on stated grounds such as abuse of powers (Fla. Stat. § 744.3203). A valid power of attorney signed in time often means no court case is needed at all.

Side-by-Side: Who Decides, Who Supervises, and Who Can Revoke

A power of attorney works without court involvement. A guardianship works through a court order and ongoing court oversight.

Keep one point in mind. A power of attorney only covers what the document grants. The agent can’t use it for powers the principal never gave.

How a Florida Guardianship Proceeding Works

Families often ask how a guardianship case begins, and the steps depend on the facts of each situation. The steps follow a set order.

1. The petition. It must be verified and name the person, the petitioner, and the next of kin. It must also say whether the person uses assistance to exercise their rights, such as supported decisionmaking, and if so, why that assistance is inappropriate or insufficient (Fla. Stat. § 744.3201).
2. Notice. The person must be served and the notice read to them. Their attorney and next of kin also receive notice (Fla. Stat. § 744.331).
3. The examining committee. Each member of the examining committee must complete a minimum of 4 hours of initial training, unless the court waives that requirement for a person who has served for not less than 5 years on examining committees (Fla. Stat. § 744.331).
4. The finding. The court can find incapacity only on clear and convincing evidence. It removes only the rights the person can’t exercise.
5. Letters. Letters of guardianship state whether the guardianship is plenary or limited (Fla. Stat. § 744.345).

Timing varies with the court calendar and how contested the case is. Plan for a process, not a quick signature.

Types of Guardianship You May Encounter in Florida

The main types are plenary, limited, emergency temporary, and mental health guardianship. The Marchman Act is a separate process.

• Plenary guardianship. The petition must state whether a plenary or limited guardianship is sought (Fla. Stat. § 744.334). Plenary covers the broader set of rights.
• Limited guardianship. The letters must list the guardian’s powers and duties (Fla. Stat. § 744.345). This keeps the person’s remaining rights intact.
• Emergency temporary guardianship. The court needs a specific finding of imminent danger to health, safety or property. The court must appoint counsel for the person. Notice goes out at least 24 hours before the hearing, unless substantial harm would occur. The authority lasts 90 days or until a guardian is appointed, whichever occurs first, and can be extended for 90 more days upon a showing that the emergency conditions still exist (Fla. Stat. § 744.3031).
• Mental health guardianship. This covers incapacity tied to mental illness. The court still follows the incapacity steps described above.
• Marchman Act petitions. This is a separate court process for involuntary assessment and treatment related to substance use. It is not a guardianship. A petition belongs in the county where the respondent is physically located when filed. A wrong county is a venue defect, not a lack of jurisdiction (J.P. v. J.N.). A Marchman respondent has a due-process right to counsel (Hillsborough County v. Albrechta).

What Guardianship and a Power of Attorney Typically Cost

Costs differ because a guardianship runs through a court. A power of attorney mostly costs the document and any later legal review.

For a power of attorney, expect costs for preparing the document and the required signing steps. For a guardianship, expect:

• Court filing and related fees
• Attorney fees for the petition, notice, and hearing
• Costs of the court process and any evaluation required
• Ongoing costs, such as reports and any bond the court requires

For an emergency temporary guardian of the property, a bond may be required before the guardian exercises authority as guardian. Fees for the temporary guardian and their attorney can’t be paid until the final report is filed (Fla. Stat. § 744.3031).

Your total depends on the facts of your case. Bring these items to a consultation to help estimate it:

• The power of attorney or any other signed document
• Medical or capacity information about the person
• A list of family members, property, and accounts

Can a Guardianship Be Contested, and What If a Power of Attorney Already Exists?

Whether a guardianship can be contested depends on the facts of each case. Reasonable notice of a later hearing must be served on the incapacitated person, that person’s attorney if any, any guardian then serving, and next of kin.

An existing power of attorney changes the picture. A guardianship petition must state the reasons why a guardian advocate or other alternatives to guardianship are insufficient to meet the needs of the alleged incapacitated person, and those alternatives include a durable power of attorney. If a valid alternative is found, the court must review whether a guardian is still needed (Fla. Stat. § 744.462).

Some families think they can simply act informally. Informal help can fall short. Banks and medical providers often ask for formal, valid authority. Each case turns on the actual documents and facts. If the person can still sign, they may revoke an old power of attorney by expressing the revocation in a new signed power of attorney or other signed writing; signing a new power of attorney alone does not revoke an earlier one (Fla. Stat. § 709.2110).

Why Families Work With Robinson Casey on These Matters

Robinson Casey focuses exclusively on Marchman Act petitions and guardianship matters. The firm serves families in Miami-Dade, South Florida and statewide.

The practice covers:

• Emergency temporary guardianship
• Plenary and limited guardianship
• Mental health guardianship
• Marchman Act petitions and involuntary commitment for addiction

Richard J. Casey III, Esq., is responsible for this page. Our team, including support staff, helps families gather documents and prepare for the first consultation.

The practical benefit is clarity. You get a side-by-side look at each tool before you decide which path fits your family.

Frequently Asked Questions About Guardianship and Power of Attorney in Florida

Talk With Robinson Casey About Your Family’s Situation

If your parent or spouse can no longer manage money, property or care decisions, the document you have may not be enough. A short conversation can show you which tool fits.

Your first consultation is free, confidential, and carries no obligation to continue.

Call (561) 849-4149 or use the contact page to talk through your family’s situation with our team.