Appointing a Pre-Need Guardian is a crucial step in estate planning, as it provides you with control over who will be responsible for your care if you ever become incapacitated. Our Estate Planning Lawyer recommends that you get your estate plan in order before you encounter major health concerns. While the prospect of incapacitation is something we all hope to avoid, the reality is that with ageing, the risks of conditions like dementia and Alzheimer's disease increase. According to the Alzheimer's Association, more than 6 million Americans are living with Alzheimer's, and they estimate that by 2050, this number is projected to rise to nearly 13 million. The CDC estimates that about 200,000 under age 65 will suffer from younger-onset Alzheimer's. 
As a local estate planning attorney, I often emphasize the importance of utilizing a Designation of Pre-Need Guardian in your Estate Plan. This essential document, often combined with other Advanced Directives such as a living will, durable power of attorney, or a health care surrogate designation, is integral to a well-rounded estate planning approach.
Our estate planning lawyers specialize in tailor-made estate planning solutions. We provide comprehensive guidance to our clients, ensuring their peace of mind and the protection of their legacy. To learn how a Pre-Need Guardian can strengthen your estate plan and safeguard your future, consider consulting with our skilled estate planning attorney in Tallahassee.
1. What is a pre-need guardian designation in estate planning?
A pre-need guardian designation designates that in the event of incapacitation, as determined by a legal court, your chosen guardian assumes responsibility for your care. This planning is critical in safeguarding your interests and upholding your wishes during unforeseen circumstances. It's crucial to a comprehensive estate plan to ensure your choices are respected.
2. Why is a pre-need guardian designation crucial for estate planning in Florida?
An estate planning lawyer near you can explain that this designation is critical to ensuring your preferred individual manages your affairs if you're unable to do so, covering personal, healthcare, and financial decisions. Leaving this critical decision up to the court can have severe unintended consequences and have someone you do not wish to be your guardian fill this role.
3. Who can serve as a pre-need guardian in my estate plan?
An estate planning lawyer near you can help choose a competent adult, like a family member or friend, who aligns with your estate planning goals to nominate as your guardian. Explore our estate planning lawyer's blog post on things to consider when selecting a personal representative or guardian.
Ultimately, the court has the final say regarding who will serve as a person's guardian. However, the designation of a Pre-Need Guardian document creates a legal presumption to be used by the court as a guardrail. Pursuant to Section 744.3045 of the Florida Statutes:
- "Production of the declaration 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."
4. Who Can't Serve as a Pre-Need Guardian?
Section 744.309 of the Florida Statutes specifies individuals who are ineligible to serve as pre-need guardians. Key among these disqualifications are individuals with a felony conviction and those who, due to illness or other incapacities, cannot fulfil the responsibilities of a guardian. Additionally, Florida courts exclude anyone who has been found guilty of child abuse, abandonment, or neglect.
Moreover, the statutes restrict certain professionals from taking on the role of a pre-need guardian. This includes individuals who offer services in a professional or business capacity, with exceptions for professional trust companies, non-profit organizations, banks, or other certified entities. Furthermore, individuals who are creditors of the person (ward) in need of guardianship are also barred from serving as pre-need guardians in Florida.
5. How does a pre-need guardian differ from a power of attorney in Florida?
Generally, a durable power of attorney is limited to financial decisions, while a guardian often has broader responsibilities. A Pre-Need Guardian and a Durable Power of Attorney (POA) serve distinct yet important legal and estate planning roles, but they differ in their functions and the authority they grant.
Pre-Need Guardian:
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Role and Purpose: A Pre-Need Guardian is someone you designate in advance to become your guardian if you are determined to be incapacitated by a court. This designation is typically part of your estate planning documents.
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Scope of Authority: The authority of a Pre-Need Guardian is activated after a court declares you incapacitated. The guardian's role is broad and covers general decision-making authority over your personal, health, and financial matters, depending on the court's determination.
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Court Involvement: A significant aspect of the Pre-Need Guardian is the necessity of court involvement. The court determines your incapacity and oversees the guardian's actions to ensure they act in your best interests.
Power of Attorney (POA):
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Role and Purpose: A Power of Attorney is a legal document in which you designate an individual (your agent or attorney-in-fact) to make decisions on your behalf. This can include financial, legal, and sometimes health decisions.
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Scope of Authority: The scope of the POA can be as broad or as limited as you specify in the document. It can take effect immediately upon signing or become active only upon your incapacitation, depending on how it's structured (immediate vs. springing POA).
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Court Involvement: Unlike a Pre-Need Guardian, there's generally no court involvement required for a POA to become effective unless there's a dispute or need for legal intervention. The agent's authority under the POA is based on the terms of the document rather than a court's determination.
A Pre-Need Guardian is designated for decision-making in the event of incapacitation as determined by a court, covering a broad range of personal decisions. On the other hand, a Power of Attorney (POA) grants an agent the authority to make specific decisions on your behalf, either immediately or upon incapacitation, based on the terms set in the POA document and typically does not require court intervention.
6. Can I modify my pre-need guardian designation in my estate plan?
Yes, so long as you are of sound mind and not otherwise incapacitated, you can consult with your local estate planning lawyer to update your designation according to your current wishes and estate planning objectives. Our estate planning lawyer in Tallahassee recommends regular review of your estate planning documents, and review before undergoing any medical procedure.
7. What happens without a pre-need guardian in my Florida estate plan?
Without this, a court will appoint a guardian, potentially conflicting with your estate planning intentions. An estate planning lawyer near you can provide guidance.
8. Will the chosen pre-need guardian in my estate plan always accept the role?
No, someone has to be willing to accept the role and responsibility of being your guardian. Conversations before your incapacity are critical to ensure that the person(s) you wish to serve in this role are aware of and are willing to serve as your guardian. Please discuss your estate planning decisions with your guardian to ensure they're willing and able to accept the responsibility.
Final Considerations:
Upon incapacitation, individuals may become susceptible to mistreatment and exploitation. A significant tool to mitigate these risks involves choosing a trustworthy individual to make decisions for you. The individual appointed in the pre-need guardianship document should be someone you trust implicitly to manage your medical and financial affairs, particularly in situations where a medical condition prevents you from making these decisions yourself. This careful selection process is crucial for ensuring your well-being and safeguarding your interests when you are most vulnerable.
