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Sunday, September 12, 2010


Florida, along with many other states, allows a competent individual to prepare a written preneed guardian declaration that names a person to serve as guardian for the declarant in the event of incapacity. This is an important tool, allowing persons to name who shall be responsible for their person and property in the event of incapacity, and thus avoiding relatives, caretakers, or others who the declarant does not want to serve from being named guardian. We all know people that would not be good guardians, either because they lack the requisite skills, are too self-centered, or that may act with bad motives (for example, seeking to conserve assets which they may inherit in the future instead of using such assets to support the ward).

In the event of incapacity, what weight must the guardianship court give to the preneed declaration? Fla. Stats. §744.3045 indicates that the declaration is a rebuttable presumption that the preneed guardian is entitled to serve. However, the court may disregard the declaration if the preneed guardian is found to be unqualified to serve by the court. Thus, if the named guardian is unfit, or unsuitable, or if a conflict of interest exists between the guardian and the ward, the court need not point the named person.

In a case arising in Miami-Dade County Circuit Court, the guardianship court declined to follow a declarant’s naming of three persons to serve as preneed guardian, and named one person only to serve as guardian. The court did this based on representations that the declaration required unanimous actions by the three appointed guardians, and that this was not workable because the guardians disagreed as to certain care-giving issues.

In an opinion that gives due recognition and respect to the declaration, the Third DCA reversed the guardianship court and required the appointment of all 3 named guardians. The appellate court noted that the intent of the ward is the polestar that should guide probate judges in the appointment of guardians, and that this was not respected in this case.

There were a number of procedural problems with the guardianship court’s order. First, the court never examined the declaration itself, and the representation to the court that it required unanimous action by the guardians was erroneous. Further, there was no finding  by the court that any of the named guardians was unqualified, unwilling, or unable to serve as guardian.

Therefore, we don’t know if the court would have upheld the lower court if in fact unanimous action was required. To avoid this issue entirely, practitioners should give thought to avoiding a requirement for unanimous action when multiple guardians are named (even the appointment of 2 guardians has the risk of deadlock). Alternatively, they could give final decision-making power to one of the named guardians in the event of deadlock on any given issue.

It is always reassuring when the courts give due regard to statutory presumptions, although it did take an appellate court reversal to reach that result in this case (but again, in the guardianship court’s defense, that was due in large part to a misrepresentation by one of the attorneys before the court.

Acuna & Magill v. Dresner, 2010 wl 3025111 (3rd DCA 2010)

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