Florida Estate Planning: The Pre-Need Guardian

Unfortunately, many deaths in Florida will occur in a hospital or a nursing home. A good portion of these deaths is unexpected, leaving little time for planning or consideration of extremely important aspects of your life, particularly for your children.

Critical decision-making must sometimes be made during the last few weeks, days, or even hours of life. However, you may not be in the right state of mind to make these decisions. As such, having individuals named ahead of time who will fulfill your role with regard to your wishes is vital. Naming a “Pre-Need Guardian” in Florida ahead of time can help you address these issues.

What is a Pre-Need Guardian?

A pre-need guardian is someone who steps into your shoes with regard to your minor children if you become incapacitated or pass away. This person will assume a guardianship role without having to formally adopt your child or go through other legal processes.

If you fail to name a pre-need guardian, then the court can assign a guardian to your minor children. Likely, this person will be a family member if the judge determines that would be appropriate. However, the idea of having someone that you have not approved watch over your kids is very frightening for many parents. Establishing someone to serve as the guardian of your children now can help you avoid these issues.

Naming Your Pre-Need Guardian

You must create a Pre-Need Declaration to nominate an individual to serve as the guardian of your children should you be unable to fulfill your parental duties. You can also explicitly set out whom you would NOT like to be your pre-need guardian as well, which may be even more important for some families.

This form will then be presented to the court should the need arise. Florida law assumes that the declaration is valid and that guardian is qualified to serve. However, a court may still disregard the statement if it finds that the guardian is not qualified. Generally, someone else must raise this objection, such as a grandparent or other family member, but the court may raise the issue itself in some circumstances as well.

The best interests of the child will be the primary consideration when determining whether a Pre-Need Guardian Declaration is appropriate. In addition, the court will also consider if the person had the capacity or competency to assign a guardian at the time that he or she executed the declaration.

To avoid issues with competency or validity, it is important to prepare and implement the Pre-Need Guardian Declaration early and periodically revise it as necessary. Luis E. Barreto & Associates, P.A. can help you with this process. Call 305-358-1771 for more information.

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Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.