Power of Attorney and Guardianships
Sometimes in our practice, we have the occasion to handle cases where a Power of Attorney (POA), or a Guardianship are involved or are required.
What is a Power of Attorney or a Guardianship and what is their purpose?
A Power of Attorney is a legal document that a person (the principal) has created to give another person (the agent) the right to act on the principal’s behalf. It can be a Limited Power of Attorney, or a General one. The limited Power of Attorney is very specific as to what action the principal is allowing the agent to take on their behalf. For instance, if the principal wanted to give the agent the right to sell a property for them, then the POA could be limited solely for that purpose. However, if the principal wanted to give the agent the right to handle all of their affairs, such as medical, financial, properties, contracts, etc. then a General Power of Attorney would be the proper legal document for that purpose.
A person must be of sound mind and not incapacitated to give someone a Power of Attorney allowing them to act on their behalf. If a principal gives an agent a Durable Power of Attorney, then this Power of Attorney should remain in effect, even if the principal becomes incapacitated after the Power of Attorney was issued. Most Powers Of Attorney granted in Florida today are Durable ones. The Durable Power of Attorney must have very specific language though that provides that the agents power survives the incapacity of the principal.
We have cases where a POA was used by the agent to hire our firm to represent the principal in a personal injury case because the principal was incapacitated and unable to pursue the personal injury matter themselves.
A Power of Attorney terminates when the principal dies, revokes the Power of Attorney, a Court determines that the principal is totally or partially incapacitated and the Power of Attorney did not specifically provide for that, the purpose of the Power of Attorney has been served, or the term of the Power of Attorney expires.
A Guardianship is the appointment by the Court of a surrogate decision-maker for a minor child or for an adult with mental and/or physical disabilities allowing the guardian to make personal and/or financial decisions for that person, (known as the Ward). Adult Guardianship is the process by which the Court finds an individual’s ability to make decisions is so impaired that the Court gives that right to another person.
Florida law requires that the Court appoint a guardian for a minor in circumstances where the parents have died or become incapacitated, or if the child receives an inheritance or proceeds from a lawsuit or insurance policy exceed the amount of money to the child allowed by statute.
In our office, often times the personal injury damages we recover for a minor’s injuries exceed the amount allowed by Florida Law to go directly to a minor and therefore we have to have the family hire an attorney who can petition the Court for the establishment of a Guardianship for purposes of approving and managing the child’s personal injury recovery.
If you, or anyone you know ever has any questions concerning this legal topic or any other legal matters, please contact us. If it is something we do not handle like Powers of Attorney or Guardianships we can refer you to one of our Friends of The Firm who specializes in that area of law.
We are always here for YOU!
Chuck and Sarah