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What is 'competency' for naming a preneed guardian in Florida?

This blog has discussed a number of issues regarding adult guardianship in the state of Florida. We have discussed what a guardian's duties might be, some pitfalls facing guardians, as well as some discussion of the various arguments regarding the reformation of the professional guardian field. We have also discussed that creating a document appointing a "preneed" guardian is one option in estate and incapacity planning. Preneed guardianship designation allows one to designate a specific person to take care of him or her should the designator become incapacitated.

Florida Statute 744.3045 authorizes these designations of preneed guardians. The statute requires specificity and that the designated person be qualified to serve. This creates a rebuttable presumption that the designated person should be named guardian. One way that this appointment might be challenged, is that, just as in the case of a will, the person creating the preneed guardian designation was not competent to do so. Until 2014, however, it was unclear exactly what standard of competency was required. Was simply understanding that he or she could trust the appointee enough, or was there a need for more complex understanding of consequences of such designation required?

This question was answered, at least for some of Florida, in an appellate decision by the First District Court of Appeals. In this case, there was the challenge by some siblings of an incapacitated women of the preneed designation of her husband as guardian. In the case, the court decided that simply understanding she was appointing her husband was not enough, and that to for such designation to be effective, the woman must have understood the actual consequences of the document designating the individual as guardian.

This is, more or less, the same standard used to determine if a person was competent to create a will. It makes sense, as it is a standard that probate courts are used to applying. There was another big issue as to preneed guardianship answered in the above mentioned case, which we will address in a later post.

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