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Written by on Feb 20, 2014| Posted in: General


Everyone’s estate plan is different.  Some people are content with having only a will and trust to manage and distribute their financial assets after death.  However, others find it appropriate to name a specific person to take care of their personal and financial well-being in the event that he or she becomes incapacitated during his or her lifetime.  The Florida legislature has provided such an avenue through the enactment of Fla. Stat. 744.3045, which is the law dealing with a preneed guardian.

The statute states that “[p]roduction of the declaration (of a previously-designated preneed guardian) in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.  The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.”  What if there are other family members who dispute the appointment of that preneed guardian?  Such disputes often arise between family members when one member is designated as preneed guardian over another.

The appellate court in Koshenina v. Buvens, 2014 Fla. App. 1363, dealt with such an issue when the alleged incapacitated person (“AIP”) executed a Designation of Preneed Guardian in favor of her husband prior to her being determined incapacitated.  The AIP’s brother and sister initially petitioned the court to have the AIP determined incapacitated and for them to be appointed as the emergency temporary co-guardians.  They made allegations that the AIP was being neglected and abused at the living facility where she was residing.  After they were appointed by the Court, the husband filed his Designation of Preneed Guardian asserting that he should be appointed as guardian pursuant to said designation.  The siblings objected claiming that it would be in the AIP’s “best interest” for them to remain as the court-appointed co-guardians despite this previously-executed Designation.  The trial court heard argument from both sides and ultimately determined that since the husband’s personality and social skills were not conducive to making appropriate decisions for the AIP, it would not be in the AIP’s “best interest” for the court to honor her preference expressed in the Designation.  As a result, the trial court ordered that the siblings should remain as the co-guardians.

The husband subsequently appealed this order, and the appellate court determined that the trial court abused its discretion by applying the incorrect legal standard pertaining to a designation of a preneed guardian.  First, the appellate court stated that the trial court failed to make any determination as to whether the AIP was competent at the time that the Designation was executed.  It held that the trial court should address this issue and utilize the legal standard of testamentary capacity to execute a will when assessing whether or not the AIP had capacity to execute a designation of preneed guardian.  Second, the appellate court noted that Fla. Stat. 744.3045(4) provides that “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.”  Therefore, the appellate held that the trial court incorrect applied the preneed guardian standard.  The question should not be whether the appointment of the preneed guardian would be in the AIP’s best interests; the question is whether the preneed guardian’s appointment would be contrary to the AIP’s best interests. Although the difference is subtle, the appellate court stated that the designation of one’s preneed guardian is extremely intimate and highly personal and, therefore, should only be disturbed when there is clear evidence showing that such an appointment is contrary to the AIP’s best interests.

In other words, if a trial court does not want to appoint your designated preneed guardian, it better have a compelling reason not to.  The standard is very high if such designation is to be ignored and this is so for good reason.  Deciding who should take care of you and your finances during some of the most difficult moments in your life is an extremely personal decision; and the courts recognize that they should not interfere with that decision merely on a whim.  No one can predict the future; however, having a designating preneed guardian as part of your estate plan may and should be a critical component to it.  You should contact an experienced probate attorney to assist you with this planning.

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