When consulting with an attorney on the creation of estate planning documents, usually the documents that first come to mind are a Living Will, a Final Will and Testament, and a Power of Attorney. Another document that is typically included in a life or estate planning “bundle” is a Designation of a Preneed Guardian. While a Last Will and Testament and a Living Will are more commonly referred to, a Designation of a Preneed Guardian is quite important to know and to include within your life planning documents.

What is a pre-need guardian?

One of the first questions you might ask yourself is, “what is a guardian?” Under section 744.3045 in the Florida Statutes,  a guardian is defined as someone who is assigned to serve on your behalf in the event you are incapacitated. And pursuant to section 744.361 in the Florida Statutes, the guardian will be able to act on your behalf and will have the authority to make decisions for you. Under 744.361(13), the types of decisions include and are not limited to:

(a) Consider the expressed desires of the ward as known by the guardian when making decisions that affect the ward.

(b) Allow the ward to maintain contact with family and friends unless the guardian believes that such contact may cause harm to the ward.

(c) Not restrict the physical liberty of the ward more than reasonably necessary to protect the ward or another person from serious physical injury, illness, or disease.

(d) Assist the ward in developing or regaining capacity, if medically possible.

(e) Notify the court if the guardian believes that the ward has regained capacity and that one or more of the rights that have been removed should be restored to the ward.

(f) To the extent applicable, make provision for the medical, mental, rehabilitative, or personal care services for the welfare of the ward.

(g) To the extent applicable, acquire a clear understanding of the risks and benefits of a recommended course of health care treatment before making a health care decision.

(h) Evaluate the ward’s medical and health care options, financial resources, and desires when making residential decisions that are best suited for the current needs of the ward.

(i) Advocate on behalf of the ward in institutional and other residential settings and regarding access to home and community-based services.

(j) When not inconsistent with the person’s goals, needs, and preferences, acquire an understanding of the available residential options and give priority to home and other community-based services and settings.

Who should I designate as my pre-need guardian?

Through a Designation of a Preneed Guardian, you are given the opportunity to decide who will serve as your Preneed Guardian. While sections 744.3045 and 744.312 in the Florida Statutes state that a judge will determine if the guardian is best suited for the job, you should take some things into consideration. Some of the questions you should ask yourself when determining who to include as a Preneed Guardian are “will this person act in my best interest?” or “is this person someone that I can trust?”

What if I do not have a designation of pre-need guardian and I become incapacitated?

While it is wise to have a Designation of a Preneed Guardian in the event that you become incapacitated, section 744.312(2) of the Florida Statutes provides that a judge may assign a person to become your guardian, but shall give preference to:

(a) Is related by blood or marriage to the ward;

(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;

(c) Has the capacity to manage the financial resources involved; or

(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.

In sum, you are not required to have a Designation of a Preneed Guardian, but if you have reservations as to whom you wish to serve as yours, it is best to have one.

What if the person I designate as pre-need guardian refuses or is unable to serve?

Before designating someone as your Preneed Guardian, you should speak with them to determine whether that is a role they are willing to take on. Typically, a Designation of a Preneed Guardian has you include an alternate in the event that the first designee is unable or unwilling to serve as a guardian. Section 744.3045(6) in the Florida Statutes states, “If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian…”

Contact us today if you are interested in learning more about Florida estate planning.

If you are interested in learning more about a designation of preneed guardian, or in a Florida estate plan, contact us today to schedule a free consultation. During our consultation, one of our attorneys will review your current estate plan, and may recommend some changes to benefit you and your family.

Written by: Sarah Jacobi, Stetson University College of Law, Class of 2020
Edited by: John Richert, Esq. and Patrick Quarles Esq.