Can a Florida Guardian Do Medicaid Planning for Dad? Getting the Court's Permission

Tony's Situation: A Guardian Without a Power of Attorney

Tony, 57, of Titusville, is guardian of the property for his father Sal, who is 84 and living in a skilled nursing facility. Sal never signed a durable power of attorney. By the time the family realized he needed one, Sal's dementia had progressed too far for him to sign anything new, and the family had to open a guardianship just to pay his bills and apply for care. Tony and Sal are a composite, not real Truestead clients, but their situation reflects one of the most common calls our office gets: a guardian sitting on a shrinking pile of savings, watching the nursing home bill arrive every month, and wondering whether Medicaid planning is even possible now that a judge is involved.

Florida guardianship is a court process under Chapter 744 that appoints someone to make decisions for a person a judge has found incapacitated, used only when less restrictive tools cannot do the job. Because Sal has no power of attorney, Tony cannot simply act. He needs the court's permission for almost every meaningful financial move.

What a Guardian Cannot Do Without a Court Order

A common misunderstanding is that once someone is appointed guardian of the property, they can manage the ward's assets the way an agent under a power of attorney would. That is not how Florida law works. A guardian's authority comes entirely from the guardianship order and from Chapter 744, and certain acts require separate, specific court approval before the guardian may proceed. These typically include:

• Making gifts of the ward's property, even to family members
• Creating or amending a revocable trust, or establishing an irrevocable trust, for the ward
• Purchasing an annuity or restructuring how the ward's assets are held
• Entering into a personal care or caregiver contract on the ward's behalf
• Selling real property or changing the ward's county of residence

For Tony, this means he cannot simply move money out of Sal's name, buy a Medicaid-compliant annuity, or pay a family member to provide care, no matter how sensible the idea, without first asking a judge.

The Petition: What Tony Has to Ask the Court For

To do Medicaid planning for Sal, Tony's elder law attorney files a petition asking the court for specific authority. A well-built petition for a case like this typically requests permission to:

• Make gifts or transfers of a defined amount or asset, consistent with a Medicaid spend-down strategy
• Create or fund a trust arrangement appropriate to the ward's circumstances
• Purchase a Medicaid-qualifying annuity, if that tool fits the plan
• Enter into a caregiver agreement compensating a family member for documented care already provided or to be provided

The petition is not a blank check. It describes the specific transaction, the dollar figures involved, and why each step is necessary. A general request to "do Medicaid planning" is not enough; Florida courts expect the guardian to show their work.

What the Judge Needs to See: Substituted Judgment and the Ward's Own Plan

Florida law gives judges two different lenses for evaluating a guardian's request. When the ward's own wishes can be determined, even from before incapacity, the court applies substituted judgment: what would this person have chosen for themselves? When the ward never had capacity to express preferences, or when following old wishes would now harm the ward, the court instead applies a best interest standard.

For someone like Sal, substituted judgment usually means the judge wants to see:

• Any prior estate plan, will, trust, or beneficiary designations, since these show what Sal intended for his property
• Evidence of Sal's values and past behavior toward family, gifting patterns, and care preferences
• How the proposed plan benefits Sal directly, not just his heirs, by extending his care options or preserving funds for his supplemental needs
• Whether the plan is consistent with, rather than contrary to, Sal's own documented plan

The Medicaid Look-Back Clock and Why Timing Is Everything

Florida Medicaid reviews the applicant's financial transactions going back a period of years before the application, commonly referred to as the look-back period. Any uncompensated transfer discovered during that window can trigger a penalty period of ineligibility. This creates real tension for a guardian: the court process to get approval takes time, and Sal's nursing home bill does not wait for a hearing date.

An experienced elder law attorney manages this by coordinating the guardianship petition with the Medicaid application timeline from the start, often structuring the request so that any approved transfers are properly documented, explained to the court, and, where needed, paired with strategies that avoid or reduce a penalty period. Filing late, or filing a vague petition that gets sent back for revision, can cost a family months of otherwise avoidable spend-down.

Tony's Approved Plan

In Tony's case, his elder law attorney filed a petition asking the court for authority to fund a small irrevocable trust for Sal's supplemental needs, enter into a caregiver contract compensating Tony's sister for documented hands-on care she had been providing, and purchase a Medicaid-compliant annuity with a portion of Sal's remaining savings. The petition included Sal's old will, which showed his intent to provide for both of his children, and a letter from Sal's physician describing his care needs. At the hearing, the judge confirmed that each piece of the plan matched what Sal would likely have chosen for himself and approved the requested authority. Tony was then able to move forward, properly documented and inside the Medicaid rules, without guessing at his own authority.

None of this would have been necessary if Sal had signed a durable power of attorney years earlier with the right powers spelled out, including the ability to make gifts and do Medicaid planning. A properly drafted power of attorney lets a family act immediately, without a petition, a hearing, or a judge's calendar standing between the family and the nursing home bill.

This article is for general informational purposes only and does not constitute legal advice, nor does reading it create an attorney-client relationship. Florida estate, elder, probate, and real estate law are fact-specific and change over time. Consult a licensed Florida attorney about your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.