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Does a Power of Attorney Eliminate the Need for a Guardianship in Florida?


A Florida court can appoint a plenary guardian to serve as a legal decision-maker on behalf of an adult who is no longer capable of caring for themselves. A guardianship is only created as a last resort, however, and if the incapacitated person has a power of attorney or similar estate planning documents in place, those generally eliminate the need to appoint a guardian. That said, even if there is an agent exercising a power of attorney, the court may displace that individual in favor of a guardian if there is evidence of misconduct by the agent.

Florida Appeals Court Holds Trial Judge Violated Spouse’s Due Process Rights in Guardianship Dispute

A recent decision from the Florida Fifth District Court of Appeal, Hudkins v. Hudkins, illustrates how this process works. This case centered on a man–known as “the ward”–who was incapacitated following a 2020 car accident. Three years earlier, the ward married his current spouse. Shortly after the marriage–and well before the accident–the ward signed a durable power of attorney naming the spouse to act as his agent in the event of his incapacity. The power of attorney was broad in scope and included the right to make gifts to herself and transfer real property and other assets.

The ward had also executed a deed transferring a condo that he owned in Cape Canaveral to him and his spouse as “tenants by the entirety,” meaning they now jointly owned the property. The couple subsequently signed a second deed transferring the same property to their joint trust. Finally, the ward transferred a second property he owned in Ponte Vedra to himself and his spouse as tenants by the entirety.

Following the 2020 car accident the ward had to be moved into a long-term residential treatment facility. The spouse, exercising her authority under the power of attorney, made a series of transactions designed to shield the ward’s income and assets so that he would be eligible for Medicaid benefits. These transactions included transferring the Cape Canaveral and Ponte Vedra properties to herself and her trust. She then placed the Cape Canaveral property up for sale.

The ward’s adult son then filed a petition to be named his father’s plenary guardian. He alleged that the spouse had abused her authority under the power of attorney. A trial court granted the son’s petition. He was named guardian. The court further agreed that the two property transfers were “self-serving and not in the best interests of the Ward.” The court therefore ordered the spouse to transfer title to the Ponte Vedra property to the guardian and the proceeds from the Cape Canaveral placed into a guardianship account for the sole benefit of the ward.

The Fifth District said the trial court exceeded its authority in a couple of ways. First, while the court had the right to enjoin the spouse from selling the Ponte Vedra property, it could not summarily force her to transfer title to the guardian. The guardian had to initiate a separate legal proceeding to accomplish that. Second, as the spouse was a co-owner of the Cape Canaveral property prior to the challenged transfer, she had a due process right to be heard before the court ordered her to turn all of the sale proceeds over to the guardian.

Contact Florida Guardianship Litigation Lawyer Mark R. Manceri Today

Florida guardianship cases are often emotional, especially when they involve family members in conflict over how to do right by an incapacitated relative. That is why it is important to work with an experienced Pompano Beach guardianship litigation lawyer who can advise you of your rights and advocate for your position in court. Contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.



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