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Do I need a "guardianship" over my mother if I have a Living Will and Durable Health Care Power of Attorney?

Lakeland, FL |

I am appointed as her attorney in the above document. There is a paragraph that states "In the event that my mental or emotional condition at any time warrants the appointment of a guardian or conservator of my person or property, I nominate the attorney acting hereunder to be such guardian or conservator.

Attorney Answers 4


  1. A healthcare poa allows you to make, obviously, healthcare decisions for her. If she has any assets or income which require your attention and she is competent, she can appoint you as her agent under a poa for property. If not competent but needs someone to handle her money and assets, you need to consult with an estate planning attorney, because a guardianship could be necessary. Any more facts must be discussed.

    This response is based on the limited facts presented and is not intended to substitute for direct legal advice, nor is it intended to establish an attorney-client relationship. It is intended to direct you to issues which you may desire to explore further.


  2. Without seeing the documents you have it is impossible to say for sure. MOST medical powers of attorney will do what a guardianship will accomplish, however, a property conservatorship is something completely different, and may be needed if there is no financial power of attorney was also done at the time of the heath care PoA.

    I would urge you to consult with a local estate planning and probate attorney to insure you have what you need in place to protect your mother, and how you need to proceed to accomplish the tasks. Good luck!

    This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship. I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice!


  3. The Florida courts are slow to appoint a guardian if the POA and HCS documents are sufficient.
    These documents are designed to avoid the guardianship proceeding.
    I have a lakeland office and would be glad to review the documents without charge.

    Attorney Joe Pippen
    863-422-1370

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  4. There are two types of guardianship in Florida: for the person, and for the property. With a Living Will and Durable Health Care Power of Attorney, you have signficant, but not full, control over your mother's personal affairs. For instance, you don't have the power to require that she enter a retirement home, if she can no longer stay in her own home. If you were Guardian of the Person, you would have that power. But most importantly, the two documents you described give you no power over your mother's finances. A Durable Power of Attorney, properly drawn,
    could accomplish this.

    I practice only in Florida. So my comments are only applicable to situations involving Florida law. In general, the laws of other states are similar, but there is no guarantee of this. It is advised that you consult a lawyer who practices in the state where the issues have arisen.