Legal Question in Elder Law in Florida

My brother has POA and is refusing to let my mom see me or my family. It was suggested that I need to get guardianship, but I can't afford it. Would it be wise to get an independent person appointed by the courts to be guardian?

Asked on 2/11/11, 2:26 pm

1 Answer from Attorneys

Sanford M. Martin Sanford M. Martin, P.A.

Based on the facts described in your question, my advice is:

1. Under Florida law a POA or DPOA (Durable Power of Attorney) does not authorize the "attorney in fact" (your brother) to restrict visiting rights; a POA is to authorize a person to act in behalf of or represent another person. A POA does not appoint a guardian.

2. Whether a guardian for your mother is advisable depends on her legal capacity: Does she have limited mental capacity which seriously affects her ability to make basic life decisions (such as where to live, payment of bills, etc)? In Florida a probate court can determine whether a person such as your mother is incapacitated and requires appointment of a guardian.

3. My question: Why does your brother restrict your mother in this way? He may have a difficult challenge in explaining such restrictions to a court unless he can show such restrictions are for the benefit of your mother.

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Answered on 2/15/11, 2:24 pm

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