Insights

Power of Attorney or Guardianship: Choosing Who Decides Before a Court Does

By Terry L. (T. L.) Turnipseed, J.D., LL.M., CTFA · November 2, 2026

If you cannot make decisions and have signed nothing, a judge picks who makes them for you, in public, at your expense. A durable power of attorney and a health care directive let you choose instead, and Florida's rules on how they must be signed matter.

Imagine a stroke, a car accident or the slow arrival of dementia, and no document that says who handles your money or your medical care. The answer the law supplies is guardianship. A court declares you incapacitated, appoints a guardian, takes away the rights the guardian now exercises and supervises the arrangement for the rest of your life. The process is public, it is expensive, and the person appointed may not be the person you would have chosen.

Wendy Williams has made the point for a national audience. The television host was placed under a court appointed guardianship in New York in 2022, and she has since described the arrangement as feeling like a prison.¹ Whatever the merits of her case, the lesson for everyone else is that a guardianship is what happens when nothing else is in place.

Why guardianship is the last resort

Guardianship exists to protect people who cannot protect themselves, and sometimes it is unavoidable. It is also the most restrictive option. In Florida a petition starts with an examining committee, a court hearing and a determination of incapacity, after which the guardian files an initial plan and annual accountings for as long as the guardianship lasts.² Florida courts are required to consider less restrictive alternatives before appointing a guardian, and a valid power of attorney and health care surrogate designation are exactly those alternatives.³

The durable power of attorney

A power of attorney names an agent to act for you in financial and legal matters. The word durable means the authority continues after you become incapacitated, which is the entire point. Without durable language the document ends at the moment it is most needed.⁴

Florida has two rules that surprise people who moved from other states.

• The document must be signed before two witnesses and a notary. A form signed with only a notary, or witnessed later, is not valid.⁵
• Florida does not permit a springing power of attorney, one that takes effect only when a doctor certifies incapacity, for documents signed after October 1, 2011. The authority is effective when signed.⁶ The practical answer is to choose an agent you trust completely and, if you wish, leave the signed original with your attorney with instructions on when to release it.

Certain powers, including the power to make gifts, to create or amend trusts and to change beneficiary designations, must be separately initialed or signed in the document or they are not granted.⁷ A general form that lacks those initials may leave an agent unable to do the tax planning the family expected.

Health care decisions

A health care surrogate designation names the person who makes medical decisions when you cannot and, if you choose, lets that person act immediately so that a spouse or child can speak with doctors before any incapacity finding.⁸ A living will states your wishes about life prolonging treatment. A HIPAA authorization lets the people you name receive your medical information. These are separate documents and all three belong in the plan.

Naming a guardian anyway

Even with a complete set of documents, a guardianship may someday be necessary, for example if the agent dies or the bank refuses the power of attorney. Florida lets you sign a declaration naming the person you would want as guardian in that event, and the court must appoint that person unless it finds the person unqualified.⁹ It is a one page document that removes the family fight over who steps in.

The steps

• Choose an agent who is trustworthy, available and competent with money, and name at least one successor. A professional fiduciary is an option where family is not.
• Decide what authority to grant, and initial the powers that require it.
• Sign with the formalities your state requires, in front of the right number of witnesses and a notary.
• Tell the agent, tell the family, and give your financial institutions a copy before it is needed. Some banks have their own forms, and it is better to learn that now.
• Review every few years and after any move, marriage, divorce or death.

A guardianship takes months and costs thousands of dollars, and it ends with a stranger in a robe deciding who runs your life. A power of attorney takes an afternoon. The choice should not be hard.

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