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Least Restrictive Alternatives to Guardianship

Most people can manage their affairs, such as medical decisions and financial decisions throughout their lives, without the need for intervention. However, what happens when a person becomes incapacitated or incompetent during his or her life? What options are available, and can a person create some sort of insurance for themselves in the event of incapacity? In short, the answer may require a court guardianship proceeding to ensure individuals or loved ones are adequately cared for in the event of their incapacity.

Per Florida law, an individual may be placed under the care and control of another who functions as their legal “guardian” if specific criteria are properly established. Most of the guardianship-related litigation occurs in the early phases of creating and imposing the guardianship arrangement when an allegedly incapacitated person or a third party chooses to contest the decision. From a legal standpoint, one of the most important nuances of Florida guardianship law is the requirement that there can be no “least restrictive” available alternative to the guardianship before the court could appoint one.

Florida Statute §744.331(6)(b) requires that the court must consider testimony and other evidence that suggests there may be potentially less restrictive means as practical alternatives to guardianship and if they will adequately meet the ward’s needs. If the court determines that there is a least restrictive alternative, the court is not permitted to delegate the incapacitated person’s rights to a guardian for those issues covered by the least restrictive alternative. This method will ensure the court’s authority to consider additional factors other than whether the allegedly incapacitated party is indeed incapacitated in order to make the ultimate decision as to whether appointing a guardian is the appropriate solution.

Least Restrictive Alternatives to Guardianship

There are numerous ways to avoid a guardianship proceeding. Provided below is a brief overview of a list of the most common least restrictive alternatives to guardianship that arise in litigation.

1. Joint Bank Accounts

It is common for individuals to have their bank accounts and additional financial investments legally titled jointly with another person or persons. This type of arrangement means that the financial entity will accept the signature of either of the parties named on the joint account, permitting either individual to sign checks and make withdrawals. Additionally, assets that are jointly owned may automatically pass to the survivor in the event the other joint owner dies. Many elderly individuals set up joint bank accounts as “convenience” accounts by adding the name of a relative, friend, or acquaintance as a joint owner of a bank account to allow that individual to take care of the original owner’s bills and other financial obligations. If the joint owner has not actively helped with the payment of the incapacitated person’s financial obligations and is unwilling or unable to do so in the future, then the court will rule that such a joint bank account is not a least restrictive available alternative to guardianship.

2. Durable Power of Attorney

Generally, a power of attorney is a written delegation of authority executed by a mentally sound person to another person. These legal instruments can be used to authorize the management of a specific bank account or piece of real estate or to take a certain action on behalf of the grantor. A power of attorney may also be used to delegate broad authority to manage all assets of the granting party. The grantee or agent may only take such actions that are explicitly authorized by the grantor. A power of attorney remains valid until the grantor’s death, revocation, or they are deemed incapacitated in a court of law. A durable power of attorney, although similar to a general power of attorney, remains valid even if the grantor is judged to be legally incapacitated. A durable power of attorney may also delegate authority to plan for and consent to medical, therapeutical, and surgical care, including administering medicine. If an allegedly incapacitated individual has properly executed a durable power of attorney, the document may assist in avoiding a guardianship as a less restrictive alternative. The court must make a final judgment as to whether the arrangement adequately manages all the needs of the incapacitated person.

3. Living Trust

A living trust, also known as a revocable trust, is another type of formal delegation of authority and is comparable to a power of attorney in that it can be specific or broad in terms of its grant of authority. The grantor is the trust’s creator, and the trustee is the person in charge of managing the trust. A living trust, however, only delegates financial management and cannot grant authority over medical decisions. A living trust details how the trust property is to be managed and provides for the distribution of the trust assets following the grantor’s death. A living trust will typically be considered in a court of law as a less restrictive alternative to guardianship pertaining to the trust assets. However, since the trustee does not have the authority to make medical choices, it is usually necessary to designate a “guardian of the person” to make decisions about medical care, where the person lives, and so on.

4. Health Care Surrogate

Any mentally capacitated adult may make a written designation of a person to serve as their Health Care Surrogate (HCS), enabling said HCS to make medical decisions and to make medical decisions and to provide informed consent on behalf of said person. The person who is designated HCS can make these decisions only during the Grantor’s incapacity. Therefore, it does not take effect until the person becomes incapacitated (i.e., unable to provide informed consent for medical treatment). This determination must be made by the attending physician. At that time, the HCS must be notified and accept the designation as HCS in writing.

The HCS has the authority to make all health care decisions for the Grantor during this period of incapacity. The HCS must use the doctrine of substituted judgment in making said decisions. In addition, the HCS may apply for public benefits, such as Medicare and Medicaid, on behalf of the Grantor; however, it cannot manage or receive any property or income on behalf of the Grantor.

However, if an HCS Designation exists, and the attending physician’s written statement stating that the patient lacks the capacity to provide informed consent to medical treatment has not been made or documented in the patient’s clinical record, even if the patient is clearly incapacitated, then the HCS Designation has not been activated, and the named HCS has no authority.


Regardless of whether you or a loved one is contesting the court’s incapacity or guardianship judgment, or you are seeking to obtain guardianship to protect someone you care about, it is essential you consult with a knowledgeable guardianship attorney who can advise you on less restrictive alternatives to factor into your trial strategy.

Call us today so we can help provide you and your family with the peace of mind that comes from knowing that you have an estate plan that accomplishes your goals and will avoid unnecessary attorneys’ fees, headaches, or conflict.​