Sometimes it is necessary to make decisions on behalf of another person who has become incapacitated. The legal structure that makes this possible is referred to as “guardianship.”
You want your guardian to make the same decisions on your behalf that you would make for yourself in your competency. Florida law recognizes that the selection of a guardian is important, and thus allows people to document their choice of guardian in a “preneed guardian” declaration.
What is guardianship in Florida?
Guardianship legally appoints a competent adult to make financial, medical and housing decisions on behalf of an adult who is mentally incapacitated and cannot make these decisions on their own.
Sometimes a family member or loved one will be selected as guardian, but if no one suitable is found, the court can assign a public agency or private party to serve as the incapacitated person’s guardian.
It can be distressing to learn that a total stranger or impersonal public agency might be making key life decisions on your behalf if you are unable to make them yourself. You might have a preference for who should serve as your guardian if need be. You can document this preference by naming a preneed guardian.
Any competent adult can name a preneed guardian. This preference should be in writing and should reasonably identify who you are and who will serve as your guardian if you become incapacitated. The written document should be signed by you in the simultaneous presence of two witnesses. The document is filed with the clerk of court, who will produce the declaration.
This production creates a rebuttable presumption that your selection of guardian should stand. This means that your selection will be honored unless the person contesting the selection can prove why your selected guardian cannot serve in this role. Note that if the court finds your selection of guardian is not qualified to serve in this role, it can appoint someone else as guardian.
Guardianship is an act of last resort, as it takes away a person’s inherent decision-making rights. It is important that your guardian has your best interests in mind, and you might already have a preference for who should serve in this role. If so, you might want to consider naming a preneed guardian.