By Osborne & Francis
July 21, 2022

Incapacity, Guardianship and Advanced Directives - Are You Protected?

When Should I Consider Establishing a Guardianship?

Mental incapacity does not discriminate and can strike anyone at any time. Incapacity of this nature can result from dementia, stroke, brain injury, or other illness. So, what is “mental incapacity” anyway?

You are considered mentally incapacitated if you are unable to continue managing your legal, financial or health affairs on your own. In other words, you meet the definition of incapacity if you are unable to make meaningful decisions regarding your finances or your health. Making financial decisions that others don’t agree with does not mean that you are incapacitated. Spending your own money in an unusual way, in and of itself, doesn’t mean that you can’t handle your affairs.

Incapacity can generally be detected, even by a layperson, by posing some basic questions: Do you have a sound reason for this decision? Do you understand the nature of and repercussions of this decision? Is this decision detrimental to your financial or physical health?

Since incapacity can happen at any time, it’s best to prepare in advance and consider planning for a guardianship early on in life, while you still have the ability to do so. If you have any questions about your estate assets, you should contact an experienced attorney at (407) 655-3333. The lawyers at Osborne & Francis can help you ensure that you’re prepared to protect your assets in the event of any form of incapacity.

What Is the Purpose of a Guardianship?

Guardianship is a legal arrangement used to protect individuals who are unable to care for their own well-being due to infancy, incapacity, or disability. A court will appoint a legal guardian to care for an individual (a ward) who is in need of special protection. Plenary Legal guardians have the legal authority to make decisions on behalf of the ward and represent their financial interests. Limited Legal Guardians are only authorized control over the person, or in the alternative, only the finances of the individual.


If an individual believes you to be unable to manage your health or financial affairs, they may file an incapacity proceeding against you in a court of law in order to determine whether or not you lack mental capacity. In the incapacity proceeding, evaluations will be performed by a doctor, psychologist, and layperson with medical experience, and the reports are provided to the court before a hearing is held. At the hearing, witnesses may be called, and testimony will be presented to the court.

In the end, if you are found to lack capacity, the judge will appoint someone, a plenary guardian, that will manage both your health and your financial affairs. This guardian could be someone you trust (someone you would have chosen) or someone you don’t even know.

How Does Guardianship Affect Patient Care?

Choosing a guardian now will save time and heartache later. If you fail to execute an advanced directive indicating your preferred agent or guardian, and later become incapacitated, you may have to go through a lengthy and stressful guardianship process in front of a judge. Without an advanced directive, you may also be unable to apply for Medicaid benefits in the event that they are needed.

For example, In a recent case out of Indiana, Southwood Healthcare Center v. Indiana Family and Social Services Administration, a nursing home resident was found to be incapacitated but did not have an advanced directive naming an agent or guardian in the event of their incapacity. Because the resident did not execute a directive naming someone to act, the resident was prohibited from accessing their own financial accounts and failed to provide the necessary documentation to the Medicaid office in order to get their application for benefits approved.

The court ruled that the inability to access a financial account did not render the account an uncountable asset for purposes of Medicaid eligibility. Because the resident had the legal right to the funds in the account, the account was countable. In order to access the funds, the resident is now forced to go through the lengthy court process to have a guardian appointed in order to obtain access to the funds in the account, and submit an entirely new Medicaid Application, as the previous denial was deemed to be appropriate.

If the individual had instead planned for their incapacity before it happened, they could have had a Medicaid application submitted on their behalf without having to go through a lengthy guardianship proceeding.

Among the most commonly used advanced directives, the Durable Power of Attorney is one of the most important, if not THE most important advanced directive in your estate plan.

What Is a Durable Power of Attorney?

A Durable Power of Attorney is a document that you can sign while you still have capacity, which allows another individual to act on your behalf in the event you later become incapacitated. The person so named in the Durable Power of Attorney is often referred to as your Agent or your Attorney-In-Fact.

Unlike a guardianship, which requires an agent to act in the best interest of the ward, an agent named under a durable power of attorney must act with your preferences and wants in mind. There are consequences if the agent doesn’t do so. By signing this document before you become incapacitated, you can bypass a costly court proceeding and simply have your agent act on your behalf in the event you are unable to do so.  

Who Can Override a Power of Attorney

In some cases, you may be able to override your Power of Attorney, but only if you are still of sound mind yourself. Otherwise, it will be a close family member such as a spouse, adult children, a sibling, or a parent who can step in and override a Power of Attorney.

Situations where overriding a Power of Attorney may be required:

  • The Power of Attorney document ended or became invalid;
  • The agent is no longer acting as you have instructed them (by word, deed or writing);
  • The agent is robbing you of your assets;
  • The agent is physically or mentally abusing you.

In these types of situations, legal disputes can arise, especially if the agent is unwilling to give up their appointed powers and is still trying to control your finances. In such cases, it may be necessary to contact a lawyer for legal advice and representation.

If you have any questions or concerns about incapacity or are currently dealing with an incapacity situation on behalf of a loved one contact a lawyer right away at (407) 655-3333

What Are Some Other Ways to Plan for Incapacity?

There are various other ways you can plan and prepare for sudden incapacity. For instance:

  • You can sign a Health Care Surrogate: Just as a Durable Power of Attorney allows someone to act on your behalf if you become incapacitated, so does a Health Care Surrogate. The former gives the agent authority to make financial decisions for you; the latter gives the agent the authority to make healthcare decisions for you.  
  • You can sign a HIPAA document: This document gives doctors and other health care providers permission to give information about your condition to the authorized recipients that you name.
  • You can create a Revocable Living Trust: This is a contract between you and your Trustee to hold and manage property in a certain manner. After you sign the contract, you transfer your property to the trust. Because you no longer own the property in your personal name, if you become incapacitated the Successor Trustee can step in and manage the trust property according to your written instructions in the trust document.  

These documents are known as advanced directives and specify which actions should be taken for your health or finances if incapacity prevents you from making decisions on your own. For instance, it may contain instructions regarding whether you want life support (Living Will), or other similar decisions. These are also sometimes known as personal directives, advance healthcare directives, or medical directives.

Why Should You Be Proactive and Plan for Your Incapacity?

First, it gives you control. The person you want to handle your affairs will be named in advance of your incapacity. The things you want to happen will happen. Second, it will save your family the grief and expense of going through a court process. They won’t have to take time off work, they won’t have to get up on the witness stand, and they won’t have the headache of coming up with thousands of dollars in lawyers’ fees. Finally, as we learned from the Southwood case, above, sometimes you need someone to act quickly for you.  

If you have a plan in place, then things that need to get done can be done in a timely manner. Your agent can access financial accounts and records and submit an application for public benefits for you. Your agent can manage your investments so they are taken care of, your bills can get paid on time, and your property can be maintained. Incapacity can arise from several different causes, such as a car accident, or even a slip and fall accident; thus, it’s best to be prepared in case it happens.

Contact an Experienced Lawyer for Advice and Guidance

Planning is all about peace of mind. If you are one of the lucky ones and never become mentally incapacitated, then your agent won’t have to act on your behalf, but if you are one of the millions that will need an agent as you age, you will have a plan in place to give you and your family that peace of mind.  

If you have any questions or concerns about incapacity or are currently dealing with an incapacity situation on behalf of a loved one, contact a lawyer right away at (407) 655-3333. At Osborne & Francis, we provide confidential consultations to discuss your legal rights and options. We provide each of our clients with our undivided attention in order to determine the ideal steps moving forward.

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Dennis and the other Osborne & Francis staff were amazing! Our case was HUGE and required tender loving care. Everyone on our case did their part by putting all the puzzle pieces together. We were given step by step updates and put at ease when our nerves got the best of us. For every inquiry we made we received a timely response...You are appreciated!

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I am so thankful for EVERYONE, the entire staff at Osborne & Francis Law, for mentoring me through the mediation process with my hip replacement failures. I didn't realize how MUCH pressure they relieved me of by helping me deal with the reality of this traumatic time in my life, as it was OVER so quickly with a positive result. My family is grateful to have their mom HAPPY & FOCUSED on the future, rather than worrying about what happened in the past!

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“Dennis and the other Osborne Francis staff were amazing! Our case was HUGE and required tender loving care. Everyone on our case did their part by putting all the puzzle pieces together. We were given step-by-step updates and put at ease when our nerves got the best of us. For every inquiry we made we received a timely response.”

C. Smith

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“I am so thankful for EVERYONE, the entire staff at Osborne & Francis Law, for mentoring me through the mediation process with my hip replacement failures. I didn't realize how MUCH pressure they relieved me of by helping me deal with the reality of this traumatic time in my life, as it was OVER so quickly with a positive result. My family is grateful to have their mom HAPPY & FOCUSED on the future, rather than worrying over what happened in the past! FAST FORWARD, we are LIVING LIFE to the fullest once again!”

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“Dennis and the other Osborne & Francis staff were amazing! Our case was HUGE and required tender loving care.  Everyone on our case did their part by putting all the puzzle pieces together. We were given step-by-step updates and put at ease when our nerves got the best of us.  For every inquiry we made we received a timely response.”

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“I couldn’t have asked for a better lawyer/ firm. Everything was done professionally and exactly how I wanted. My personal attorney Mr. Garcia was still able to make things work in a timely manner and he never made me feel like he wasn’t working. Overall I’m happy with how my case turned out. I would recommend him and this law firm to anyone. I am 100% satisfied.”

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