How certain is a designation of preneed guardianship?
Miller v. Goodell, --- So.2d ----, 2007 WL 1201892 (Fla. 4th DCA Apr 25, 2007)
One of the standard documents included in most estate plans is a "designation of preneed guardian." The purpose of this document is to tell the world whom you would like appointed as your guardian if ever needed. I always make a point of reminding clients that the ultimate authority to determine whom your guardian will be rests with the courts - NOT the client.
This case provides a good example of how the statutory scheme governing these documents actually works in real life. The key statutes are:
- 744.3045 - Creates statutory presumption in favor of appointing client's designated preneed guardian.
- 744.309 - Provides list of who is automatically disqualified as a matter of law from being appointed guardian (e.g., a felony conviction will automatically disqualify you).
- 744.312 - Gives court authority to appoint someone other than the designated preneed guardian if it's in the ward's best interest.
Court says NO to designated preneed guardian:
The linked-to case is instructive because it provides an example of when a court will NOT abide by the client's wishes, as expressed in his or her designation of preneed guardian:
[A]ppellants contend the trial court erred in refusing to appoint Fanning as Audrey's plenary guardian because Audrey had executed a preneed guardian declaration naming Fanning as Audrey's alternate preneed guardian. This argument fails for the following reasons: (1) Audrey and her attorneys agreed to the appointment of a neutral professional guardian; and (2) the trial judge determined that the rebuttable presumption that Fanning is entitled to serve as guardian had been overcome, and that it is not in Audrey's best interests for Fanning to be appointed plenary guardian.* * * * *
In this case appellants have failed to establish the trial court abused its discretion. Section 744.3045(4), Florida Statutes (2005), provides in pertinent part: “Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.” The trial judge considered the evidence presented but found the rebuttable presumption of the appointment of the designated preneed guardian had been overcome. In conjunction with finding the rebuttable presumption had been overcome, the trial court also considered the application of section 744.312(4), Florida Statutes (2005), which provides:If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.
The trial court specifically found that it was contrary to Audrey's best interests to appoint Fanning as plenary guardian of the person and property.
I serve on the Probate Rules Committee. The committee recently reviewed a proposed procedural rule to implement the new statute for a preneed guardian designation. (The rule was approved by the Supreme Court in February) The committee proposed a procedural requirement that the child's next of kin be notified before the preneed guardian be confirmed after the death of the parents. I questioned whether the designation had any value if a contentious next of kin received notice,and, therefore an oppurtunity to challenge the parents' designation. The rest of the committee disagreed and insisted that the child's next of kin be notified so the child's best interests would be considered. The case you pointed out shows that parents must designate carefullly and understand that the Court's ultimate duty to act in the interest of ward may override their wishes. My days as an attorney representing parents in juvenile dependency actions still make me worry about limiting the parents' rights to decide their children's best interests.