Do You Have a Declaration of a Pre-Need Guardian in Your Estate Plan?
What is a Pre-Need Guardian? Why Do You Need One? (And you DO need one.)
Provided by: Bonnie Rhoden, Esquire
A Declaration of Pre-Need Guardian is a simple document but most estate plans and incapacity plans are lacking one. It is used to name a person you prefer to be your guardian and who you do not want to provide this service. At Rhoden Law Group you can make this incapacity document part of your plan.
I find that many clients have a Durable Power of Attorney in their plan documents and that is a necessary part of planning. Most do not have any preparation for incapacity in the case a guardian of their person or property is necessary. A Power of Attorney is an important document but what happens if that POA is not strong enough or fails to provide what is needed during times you cannot care for your own needs? What the State of Florida allows for in the Statutes is Guardianship. While a guardianship provides for your needs to be met it is a very restrictive and invasive.
Who will be appointed to make decisions for you? What if the Court appoints a limited guardian? What about when the Judge decides you need an Emergency Guardian? And you have not stated your choice for a guardian – what then? The Court will choose who will make decisions regarding your person and your property.
Utilizing a Declaration of Preneed Guardian is not complicated and allows you to state who you want to make your decisions. You can choose a different person to be guardian of your person and guardian of your property or assets. The Florida Statutes grant authority for a Pre Need Guardian in F.S. §744.3045. Also available for review in the statutes is F.S. §744.3046 which covers a Declaration of Pre Need Guardian for a minor child.
The statute for Preneed Guardian outlines who may make a declaration, who may serve, and if your Declaration may be filed with the Court. The statute says a competent person may make a designation of a qualified adult to serve, it must clearly identify the person to serve and it must be executed with particularity including signing with two witnesses. The Declaration may be filed in your local Clerk of the Court office. By creating your Pre-Need Declaration creates what is considered a rebuttable presumption of who is entitled to serve as your guardian.
In the instance of the Court determining a guardian is needed the Judge must determine the person is actually qualified as a guardian under the associated statutes 744.309 and 744.312. Further the person to serve must take the Oath of Guardian according to F.S. § 744.347. Once appointed a guardian will rely upon Letters of Guardianship from the court as a demonstration of his/her authority to act on your behalf according to F.S. § 744.345.
The attorneys at Rhoden Law Group are experienced in matters of estate planning and guardianship. We can represent you as the Principal, as the Agent, or as an adversarial party to a guardianship action. Call or text us for a complimentary consultation to ask your questions about Pre-Need Guardianship or email using the online contact form. Phone/Text: 321-549-3162