Preneed Guardian

Studies show that many deaths here in Florida, as well as the rest of the United States, occur in hospitals or nursing homes.  Sadly, the period before death is usually when critical health care situations need to be made and the person affected by this decision usually may not be capable of making the decision.  This is why it is important  Florida residents have an advanced directive and a designation of preneed guardianship document.

Law Office of David M. Goldman PLLC represents individuals and families in Jacksonville and the surrounding areas in Florida in Guardianship proceedings and litigation. Our Jacksonville Guardianship Attorneys and Ponte Vedra Beach Guardianship Lawyers focus on helping the families including the disabled and elderly with estate planning and asset protection.  Through various estate planning and asset protection documents, we can help to ensure that a client’s personal and financial well-being are taken care of if they ever become incapacitated. 

Florida allows a competent individual to declare a preneed guardian to make significant decisions concerning his or her health care or finances if a guardianship is needed.  This document helps to prevent fighting between the incompetent person’s loved ones and the court over these important decisions because the person names one or more persons to be in charge.  This declaration of preneed guardianship, along with other advanced directives, will help a guardian makes decisions in the manner the surrogate would want. 

Preneed Guardian for Minor Children

A preened guardianship in Florida is an excellent way to protect the client’s young children.  If something happens to both parents including death or incapacity, then a Florida Will can declare the parent's preference for the court to consider. Without a Florida will or document naming a guardian for minor children, the court will determine who will raise your children.  The Declaration of a Preneed Guardian for a minor is a relatively simple process and can be included in a Florida will.  A Jacksonville estate planning attorney can file a designation of preneed guardianship with the clerk of court, and the clerk will produce the declaration when a petition for incapacity of the last surviving parent is filed or upon the death of the last surviving parent.

A Florida preneed guardian for minors shall assume the duties of a guardian once the last surviving legal parent has been adjudicated incapacitated or has died. A Florida Guardianship Lawyer can create a Preneed Guardianship Declaration for you to nominate an individual who will serve as a Guardian to your child or children if you become incapacitated or die.

Preneed Guardian under Florida Statute

Florida legislature has codified preneed guardianship, which ensures the document is effective.  According to Florida Statute section 744.3045, the preneed guardianship declaration is a rebuttable presumption that the guardian nominated is entitled to serve.  A court may disregard the declaration but can only do so if the probate court finds the person unqualified to serve.  This document will also allow the incapacitated person to resume control over his or her finances and healthcare once he or she can do so. 

Preneed guardianship has also held up to challenges in probate court.  In the case of Koshenia v. Buvens, a wife with terminal dementia named her husband as her preneed guardian.  The wife’s siblings challenged the husband’s guardianship by claiming the wife’s dementia made her incompetent to make the designation.  The trial court held it was in the wife’s best interest to name the siblings as guardian. 

The appeals court overruled this decision and held the husband should be the guardian.  The court determined there were two tests to determine if the court should overrule a designated guardian. First, was the individual competent to make the preened guardian designation?  Second, if the designation was proper, is the designation contrary to the person’s best interests?  Here, the court found the wife was competent under the probate standard of competence, and the designation was not contrary to her interests.

If you think a guardianship may be appropriate or are involved in guardianship proceedings and would like representation to help you understand and deal with this complicated process, CONTACT our Jacksonville Guardian Lawyers by email or call us at 904-685-1200 to discuss your situation today.