Mom Can No Longer Sign Anything: How Florida Families Plan for Medicaid Without a Power of Attorney

Lorraine's Situation: A Familiar Crossroads

Lorraine is 86, lives in Ocala, and has advanced dementia. I'll say up front that Lorraine is a composite I use to illustrate a pattern I see often, not an actual client. Her son Greg has been managing her bills informally for years, but he never got her signature on a durable power of attorney. Now Lorraine can no longer understand a document well enough to sign it, and Greg needs to sell her car, consolidate her bank accounts, and get her into a nursing home on Medicaid. He assumed being her son, and having managed her checkbook for years, would be enough. It isn't.

This article is about that specific fork in the road: what a family can still do on their own, what legally requires a guardian, what a guardian is and is not allowed to do for Medicaid purposes, and roughly how long the process takes when there is no power of attorney already in place.

Why a Power of Attorney Signed Now May Not Work

Under Florida law, a diagnosis of dementia does not automatically strip someone of the legal right to sign a document. What matters is whether the person had the required mental capacity at the moment of signing, meaning she understood she was giving someone else authority to act for her, understood roughly what powers she was granting, and knew who she was naming. Some people with early or moderate dementia have lucid intervals where a properly drafted power of attorney can still be validly executed.

But by the time a family reaches the point Greg reached, that window has usually closed. If Lorraine can no longer understand the nature of the document, any power of attorney she signs is legally void, even if she manages to write her name. A notary's stamp does not cure a lack of capacity. This is precisely the gap that guardianship exists to fill.

What Greg Can Do Without Any Court Involvement

Not everything requires a judge. Some routine matters, especially informal caregiving decisions and small account management already structured for joint access, may not need guardianship at all. Generally, without special legal authority, a family member can:

• Communicate with doctors and facilities if the parent previously signed HIPAA authorizations or if the family is simply asking general questions
• Pay bills from an account already titled jointly with the parent, since a joint owner has independent signing authority
• Gather and organize financial records, tax returns, deeds, and insurance policies in preparation for a Medicaid application
• Begin assembling documentation for the five-year lookback period, since collecting bank statements and records does not require legal authority over the parent's assets

What Greg cannot do informally is sell Lorraine's car (titled solely in her name), close or retitle her individual bank accounts, transfer her home, or sign a binding Medicaid application as her authorized representative. Those all require legal authority he does not yet have.

When Guardianship Becomes the Only Path

Because Lorraine has no valid power of attorney and no longer has capacity to sign one, guardianship is generally the only legal mechanism available. This means Greg, or another family member, petitions the circuit court to have Lorraine declared incapacitated and to have a guardian appointed over her property, her person, or both.

In broad strokes, the process involves filing a petition, having the court appoint an examining committee to evaluate Lorraine's capacity, and holding a hearing where the judge decides whether guardianship is necessary and, if so, who should serve. Guardianship in Florida is supervised by the court on an ongoing basis; a guardian of the property must file inventories and annual accountings and generally cannot act unilaterally on major decisions.

Guardianship is not free and not instant. There are filing fees, attorney's fees, and often fees for the court-appointed examining committee and a guardian ad litem. Families should expect the process to take real weeks, not days, and to involve real cost, though the specifics vary by county and by how contested the case is.

What a Guardian Can and Cannot Do for Medicaid Planning

Once appointed, a guardian of the property can generally manage bank accounts, collect income, and handle day-to-day financial affairs for the ward. But a guardian's authority to do the kind of asset restructuring that Medicaid planning often involves, gifting assets to children, transferring the homestead, restructuring how assets are held, is limited and requires separate court approval.

A guardian generally must ask the court's permission before selling real property, making gifts, settling claims, or taking other significant actions affecting the ward's estate. The court will not simply rubber-stamp a request to give money away to protect it from Medicaid's asset limits. Instead, the judge looks at what is in the ward's best interest and, where it can be determined, what the ward would likely have wanted if still capable of deciding for herself.

The Timeline Greg Actually Faced

For Greg, the practical sequence looked something like this: filing the guardianship petition and waiting for the court to schedule an examining committee evaluation of Lorraine's capacity; a hearing at which the court appointed him limited guardian of the property; then a second petition asking the court to approve the sale of Lorraine's car and authorize specific account consolidations so he could manage her funds for her care. Only after that authority was in place could Greg move forward with organizing Lorraine's finances for a Medicaid application, all while keeping in mind that any transfers made along the way, even court-approved ones, fall within Florida Medicaid's 60-month lookback period and must be properly documented.

None of this happened quickly. Families in Greg's position should expect the guardianship and court-approval process to add real time before a Medicaid application can even be filed, on top of the normal processing time for the application itself.

Why This Is the Article Every Family Should Read Before They Need It

The honest truth is that everything described above exists to solve a problem that a properly executed durable power of attorney, signed while a parent still has capacity, would have avoided. A valid power of attorney lets a named agent manage accounts, sell property, and handle Medicaid planning without a guardianship proceeding at all. It is one of the simplest documents in an estate plan and one of the most consequential to have signed too late.

If your parent is aging, has early memory changes, or simply has not gotten around to it, that document belongs at the top of the list, well before a diagnosis like Lorraine's forecloses the option.

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.