BETTEN, MURPHY & WEISS
Attorneys, PA
Brevard's Elder Law Firm
1800 Penn Street, Suite 6
Melbourne, FL 32901-2625
Phone (321) 676-2525
The Declaration of a Pre-Need Guardian is a written document, pursuant to Section 744.3045, Florida Statutes, (See below) which states your preference for a guardian of both you and your property if you should become incompetent to manage your own affairs. It is a formal statement and is filed with the Clerk of Court in your county of residence. The declaration must be signed by you in the presence of two attesting witnesses. The Clerk of the Court will produce the declaration if and when a petition for incapacity is filed. The first choice of guardian in Florida is your preference if it can be proven; if not the courts will appoint a blood relative. This creates a presumption that your nominated pre-need guardian is entitled to serve as your guardian. You can then have peace of mind knowing that if you become incapacitated someone you know and trust will take care of you.
What is a Pre-Need Guardian for a minor?
A Pre-Need Guardian for a minor is a written document, pursuant to Section 744.3046, Florida Statutes,(See below) in which you designate someone to become your children's guardian, if you ever become incapacitated. A Court is bound to appoint the person named in the Pre-Need Guardian for a minor, especially when the document is filed with the Clerk of Court. This document, generally, will not deny a natural parent their right to be a custodian. See our Library Book - Estate Planning for Parents with Minor Children.
(1) A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant's incapacity.
(2) The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
(3) The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.
(4) 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.
(5) The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.
(6) If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
(7) Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.
(1) Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent's minor child by making a written declaration that names such guardian to serve if the minor's last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.
(2) The written declaration must reasonably identify the declarant or declarants and the designated preneed guardian and must be signed by the declarant or declarants in the presence of at least two attesting witnesses present at the same time. The written declaration must also provide the following information for each minor child named in such declaration: the full name as it appears on the birth certificate or as ordered by a court, date of birth, and social security number, if any.
(3) The declarant must file the declaration with the clerk of the court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration.
(4) Production of the declaration in a proceeding to determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is found to be unqualified to serve as guardian.
(5) The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent.
(6) If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that the alternate preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
(7) Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in s. 744.345.
(8) The clerk shall maintain all declarations filed pursuant to this section until:
(a) A petition for incapacity of the last surviving parent is filed or petition for the appointment of a guardian upon the death of the last surviving parent is filed as provided in subsection (3); or
(b) All minor children named in the declaration have reached the age of majority. The clerk may dispose of such written declaration in accordance with law.