WHO WILL BE YOUR GUARDIAN IF YOU ARE DISABLED?
If you become mentally or physically disabled and can no longer manage your financial affairs, your property, or your health, do you know whom the court would appoint as your Guardian? If you don’t have Estate Planning documents that state who should manage your affairs, the courts will step in and decide who has this authority. If more than one family member is seeking such authority, the court hearings can become contentious and costly.
A Declaration of Pre-Need Guardian is a form of Advance Directive. If you don’t have ancillary Estate Planning documents or if you expect that people will fight over who should make your decisions, then you need this document. At the Flammia Elder Law Firm, we help you designate in advance, in writing, who your Guardian should be if you become incapacitated. It is a way of saying, “If anyone goes to court to get a Guardianship over me, here’s who I want to be my Guardian.” This written declaration may also identify alternate proposed Guardians.
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Declaration of Pre-Need Guardian FAQs
Is designating a Pre-Need Guardian always the best solution?
In many cases, yes, even if your Estate Planning documents are in place. Though a Trust, a Health Care Surrogate, a Durable Power of Attorney, or other Advance Directives as part of a well-thought-out Estate Plan can get the job done, if there is any potential for conflict over who should oversee your affairs, the Declaration of Pre-Need Guardian will make it clear who you want your Guardian to be. Keep in mind that Guardianship is only authorized when the court cannot find a less restrictive option.
Who can serve as a Pre-Need Guardian?
It is generally accepted that the person named as Pre-Need Guardian is qualified to serve. In certain cases, the judge may determine—in your best interest—that the person you named is not qualified to serve as your Guardian. In this case, the court would appoint a different, qualified individual.
How does it work?
Once the court decides that you are incapacitated and approves the named Pre-Need Guardian, the Court will issue Letters of Incapacity and an Order of Incapacity allowing your Guardian to assume the role and duties of Guardian. You, then, become the Ward.
Is there a Pre-Need Guardian designation for children?
Florida law allows parents to name a Guardian for their minor children by executing a nomination of Guardian for Minor Children.