Preneed Guardian Designation: More than a Guardian Angel

An overlooked tool in the estate planning toolbox is a “preneed guardian designation”.  Florida’s Statues provide an avenue for a competent adult to prepare a written declaration identifying an individual, he or she would like to serve as a guardian in the event of incapacity.  Why is this tool potentially so important?  You might think you don’t need one if you have a durable power of attorney.

Let’s imagine the worst-case scenario.  You begin to suffer physical and/or mental issues that leave you incapacitated or unable to make your own decisions about your finances and your own health.  Personal, financial, and medical issues arise and a previously uninvolved family member who is not your designated agent in your durable power of attorney, asserts himself or herself in between you and your attorney in fact and files a petition to determine incapacity in court.  In that scenario, the durable power of attorney is suspended and the person you designated as your attorney, in fact, may not act on your behalf until the petition to determine capacity is either dismissed or withdrawn.

A preneed guardian designation working in conjunction with a durable power of attorney can fill the gap should this scenario arise.  It is a straightforward one-page document, but it must be prepared and executed with formalities similar to that of a will.  It must be in writing and executed by the person making the designation, and withdrawal in the presence of two witnesses. See §744.3045, Fla. Stat. (2018).

There are other factual scenarios that should be considered when determining what estate planning documents are best for you.  Please contact one of our estate planning and probate attorneys at Moorhead Real Estate Law Group for a consultation.