A Florida appeals court rules that a guardian is not required for an incapacitated person who had executed a valid power of attorney when competent. Smith v. Lynch (Fla. Dist. Ct. App., 4th, No. 4D01-2619, July 24, 2002).
A trial court found the subject of guardianship proceedings to be incompetent but declined to appoint a guardian. The ward's grandniece and grandnephew appealed, arguing that a guardian was required upon the finding of incompetency. The ward's husband and stepdaughter countered that no guardian is called for because the ward had previously given them a durable power of attorney to manage her property.
Apparently conflicting Florida statutes require that a guardian must be appointed for a person who has been found to be incompetent, but also that the use of durable powers of attorney may survive the incompetency of the principal.
Florida's Fourth District Court of Appeal resolves this apparent tension by pointing to statutory requirements that the appointment of a guardian be the 'least restrictive' alternative. 'The obvious import behind all of these provisions,' the court writes, 'is to require the appointment of a guardian only when no other lesser intrusion on the privacy of the ward will accomplish the purpose of protecting the ward's property.' In this case, the court finds that 'the expense and intrusion of a formal Guardian into this family was not indicated by the circumstances.'
To download the full text of this decision in PDF format, click on the following link: https://www.4dca.org/July2002/07-24-02/4D01-2619.pdf
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