Thorough estate planning typically involves naming at least one person to have power of attorney (POA) over your finances and your health care if you become incapacitated. Florida is unique in also allowing people to name a “preneed guardian.”
This is a person who will have more than POA over a couple of aspects of your life in the event of your incapacitation due to illness injury or extremely advanced age. By designating a preneed guardian and filing that designation with the clerk of court in your county, you are, in essence, telling the court who you prefer to be your guardian and have responsibility for your care “upon an adjudication of incapacity.” You may choose the same person you’ve given POA to or name someone else more suited for this responsibility.
The advantages of naming your own guardian
By being able to name your own guardian if you ever need one, you won’t have to worry that you’ll end up in the care of a court-ordered professional guardian who doesn’t know you or has much time for you. Even if you have relatives nearby, if you choose one of them (with their permission), you save your family from having to determine who will take on the responsibility or fighting it out in court.
Another advantage of naming a preneed guardian is that they can take on the role as soon as it’s determined that they’re needed. However, within 20 days of your incapacitation, they are required to get a court’s assessment of their qualifications and confirmation of their appointment. The court is not absolutely required to confirm your choice of guardian, but the preneed designation does create a rebuttable presumption that they are the proper person to serve.
The law on preneed guardians for adults is similar to that of preneed guardians for minors. This is a person named by parents to take legal guardianship of their child “if the minor’s last surviving parent becomes incapacitated or dies.”
It’s crucial to give careful thought to whom to choose as your preneed guardian (and any alternates). It’s also important to discuss the matter with anyone you’re considering to make sure they’re able and willing to take on such a large responsibility if it becomes necessary before you put anything in writing. Having experienced estate planning guidance can help with any questions or concerns you may have.