Declarations of Preneed Guardian

What is a preneed guardian?

A preneed guardian is a person who is designated, before the need arises, to take care of someone upon becoming disabled or incapacitated.

What is a Declaration of Preneed Guardian?

A document to designate a preneed guardian for yourself, or for your minor child, during guardianship proceedings.

Why do I need a Designation of Preneed Guardian for myself?

A Designation of Preneed Guardian is a helpful safety net if you cannot avoid guardianship proceedings. During guardianship proceedings, a preneed guardian election can nominate someone to take care of you. In the absence of a declaration, the court is directed to give preference to someone related by blood or marriage, regardless of whether you would choose that person or not. As long as your designated preneed guardian is not found to be disqualified under Florida law, there is a rebuttable presumption that the individual you designated is entitled to serve as the preneed guardian.

If I am in a same-sex or unmarried relationship, should I have a Designation of Preneed Guardian?

Yes. In the absence of a declaration, the court in a guardianship proceeding is directed to give preference to someone related by blood or marriage, regardless of whether you would choose that person or not. If you want your significant other to take care of you if you are disabled and they are not legally or biologically related to you, you should make have a designation in place.

Can I designate a preneed guardian for my minor children?

Yes. One of the most important aspects of an estate plan of a parent with minor children may be the designation of guardian in the event of the parent’s incapacity or death. Without a designation, preference is to be given to a person related to the minor, a person who has relevant experience, a person who has capacity to manage the financial resources, or who has the ability to meet the requirements of the law and unique needs to the individual case. This is regardless of whether you want them to take care of your children or not. A declaration constitutes rebuttable presumption that the designated preneed guardian is entitled to serve, which may be overcome by substantial, competent evidence.

Is it a guarantee that the Court will choose the guardian for my children that I designate?

No. But, the Court must consider a preneed guardian designated by the parent and commonly defers to the parent’s recommendation.

Are there any specific requirements for a Declaration of Preneed Guardian for a minor?

Yes. Florida requires certain information to be included and procedural formalities to be followed for a Designation of Preneed Guardian to be effective. The Declaration of Preneed Guardian for a minor must also be filed with the Clerk of Court. An experienced estate planning lawyer can help you navigate the substantive and procedural requirements of Florida law and ensure your nomination is considered.

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