No one wants to think about the possibility that they could become incapacitated to the point where they can’t care for themselves or even be competent to make decisions for themselves. However, it can happen to anyone – suddenly or over a matter of time.
If you have designated someone to have power of attorney (POA) over your finances and your health care if you’ve been determined to be incapacitated, you’ve taken some important steps. But who will then take care of you if you don’t have a spouse or close family nearby? Florida is unique in allowing people to name a “preneed guardian.” The law allows you to designate someone who is prepared to care for you “upon an adjudication of incapacity.”
By being able to designate your own guardian in case you ever need one, you can have peace of mind that if you suffer a serious illness or injury, you’ll be in the hands of someone you know and trust. That’s better than depending on family members (if you have them) going to court to apply for guardianship or – even worse – being assigned by the court to a professional guardian.
Key considerations
The Florida statute on preneed guardianship is fairly short and simple. Here are some highlights:
- Any “competent adult” can designate a preneed guardian.
- The document (declaration) is filed with a court and used if and when a “declaration of incapacity” is filed with the court.
- The designated guardian assumes their role immediately. However, within three weeks, they must apply with the court for confirmation of their appointment.
When a named guardian takes this last step, their qualifications will be assessed by the court. Until then, the law presumes that person is qualified unless someone presents evidence to the contrary.
As with anyone you name in your estate plan to take on an important role (executor, trustee, POA, child guardian, etc.), it’s crucial to discuss this decision with the person you choose and get their consent before you name them in your declaration. It’s also important to name an alternate in case your first choice is unable or unwilling when the time comes to take on this crucial responsibility.
Naming a preneed guardian can be a critical part of many Floridians’ estate planning. With experienced legal guidance, you can help ensure that you complete and file documents correctly and benefit from valuable information to help you make smart estate planning decisions.
