The call usually comes on a Tuesday afternoon or a Sunday night from the ER.

“Mom forgot to take her medication again.”

“Dad is giving money to strangers on the phone.”

“The bank froze her account because she couldn’t answer the security questions.”

And then the question that stops everything: “Does she have a power of attorney?”

No. She does not. She never got around to it. And now, with a dementia diagnosis, she cannot sign one.

If you are reading this, there is a good chance this is your family right now. You are not alone. Thousands of Florida families face this exact situation every year. While it is harder than it would have been with a power of attorney in place, there is a clear legal path forward: guardianship.

Why a Power of Attorney No Longer Works

A power of attorney is a legal document that one person signs voluntarily while mentally competent, giving another person authority to act on their behalf. The critical word is competent.

If your parent has been diagnosed with Alzheimer’s disease, vascular dementia, Lewy body dementia, or another form of cognitive decline, they cannot legally execute a power of attorney. Any document signed after the onset of incapacity is voidable and may be challenged.

This is why estate planning attorneys stress putting these documents in place early. If that window has closed, the court system provides a solution.

Guardianship: The Legal Solution

Guardianship is a court-supervised process that gives a family member or a professional guardian legal authority to make decisions on behalf of someone deemed incapacitated by a judge.

For families dealing with a parent’s dementia, guardianship allows you to:

• Make medical decisions, including approving or declining treatments, surgeries, and care plans
• Manage financial affairs: bank accounts, investments, paying bills, filing taxes
• Choose where your parent lives, including placement in a memory care facility
• Protect your parent from financial exploitation, scams, and undue influence
• Access medical records and communicate with healthcare providers
• Apply for Medicaid, VA benefits, or other government programs on their behalf

Without guardianship, you have no legal authority to do any of these things, even if you are the only child or if your parent verbally asked you to help.

The Florida Guardianship Process

Florida’s guardianship process is governed by Chapter 744 of the Florida Statutes. The process involves several steps to protect the rights of the person alleged to be incapacitated:

1. The Petition: Any adult can file a Petition to Determine Incapacity with the circuit court in the county where your parent resides. It must describe why your parent is incapacitated, what rights they can no longer exercise, and the level of guardianship needed.
2. Court-Appointed Attorney: The court appoints an attorney to represent your parent’s interests. This is required by law to ensure your parent’s rights are protected.
3. The Examining Committee: A three-member committee evaluates your parent and determines which rights they can no longer exercise. This allows the court to tailor the guardianship to your parent’s actual needs.
4. The Hearing: A judge reviews the committee’s findings. If your parent is incapacitated and guardianship is the least restrictive alternative, a guardian is appointed.
5. Appointment and Ongoing Duties: The guardian must file an initial guardianship plan, a verified inventory of the ward’s assets, and comply with annual reporting and accounting requirements.

Limited vs. Plenary Guardianship

Florida law requires the court to impose the least restrictive form of guardianship.

• Limited Guardian: If your parent can make some decisions, you are granted authority over specific areas while your parent retains other rights.
• Plenary Guardian: If your parent cannot exercise any delegable rights, you are granted authority over all personal and financial decisions.

The goal is not to strip your parent of autonomy but to protect them where needed while preserving as much independence as possible.

Common Mistakes Families Make

1. Waiting too long: Families hope the situation will improve or assume being next of kin gives them automatic authority. It does not.
2. Informal management: Adding yourself to accounts, calling doctors claiming verbal authorization, or making decisions without legal standing can work temporarily but fails in emergencies.
3. Underestimating the costs of delay: Every month without guardianship exposes your parent to exploitation, financial loss, medical neglect, or unapproved decisions.

Take Action Now

If you are dealing with a loved one’s dementia and there is no power of attorney in place, call Cavalier Law Group at (954) 292-9961. Our Weston-based estate planning and elder law attorneys provide guidance for Florida families and walk you through your options in a free consultation. Se habla español.

Schedule your free strategy call now.

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