The Short Answer

In Florida, a durable power of attorney is a private document you sign while you still have capacity to let someone you choose handle financial/legal matters for you, even if you later become incapacitated. A guardianship is a court-supervised process used when a person cannot manage their affairs and does not have (or cannot effectively use) valid planning documents—so the court appoints someone and limits or removes certain rights.

What Florida Law Says

A durable power of attorney (DPOA) is designed to keep working after incapacity, which is why it is often used as a preventive planning tool. Guardianship, by contrast, is a judicial remedy: the court decides whether a person needs help, what rights are removed, and what powers the guardian receives, with ongoing court oversight.

The Statute

The primary law governing durable powers of attorney is Fla. Stat. Chapter 709 (Powers of Attorney), including Fla. Stat. § 709.2104.

This statute establishes that a power of attorney is “durable” if it includes language showing it is not terminated by the principal’s subsequent incapacity.

The primary law governing guardianship is Fla. Stat. Chapter 744 (Guardianship), including Fla. Stat. § 744.2005.

This statute requires the court to specify whether the guardianship is plenary or limited, list the guardian’s powers, and use the least restrictive appropriate alternative consistent with the person’s welfare and safety.

If you want more context on how powers of attorney work in real life, you may also find this helpful: Does a Power of Attorney Still Have Authority After Death in Florida?

Why You Should Speak with an Attorney

While the statutes provide the general framework, choosing between a DPOA and guardianship (or determining whether guardianship is unavoidable) is highly fact-specific. Legal outcomes often depend on:

• Capacity and timing: A DPOA generally must be executed while the person still has legal capacity; if capacity is already impaired, guardianship may be the only workable option.
• Scope and acceptance: Even a properly executed DPOA must be usable in the real world (banks, title companies, and other third parties may scrutinize it), and the agent’s authority depends on what the document actually grants and what Florida law allows.
• Court oversight and rights: Guardianship can be limited or plenary, and the court must tailor it as the least restrictive alternative under Fla. Stat. § 744.2005; disputes among family members, allegations of exploitation, or conflicts of interest can quickly complicate the case.

Trying to handle this alone can lead to avoidable delays, rejected documents, or a court outcome that removes more rights than necessary. A probate attorney can evaluate whether a less restrictive alternative is available, whether existing documents are valid, and what approach best protects the person and their assets.

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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.