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When attorneys mention estate planning, individuals commonly think of a Living Will, Durable Power of Attorney, Trust, or a Last Will and Testament. However, there are other estate planning documents, such as a Preneed Guardian that you should consider having an attorney prepare. 


What is a Guardian? 


According to Section 744.3045 of the Florida Statutes, a Guardian is a person picked to make financial and healthcare decisions if you are unable to make those decisions or are incapacitated. The Guardian will not only be able to act on your behalf but has the authority to make certain decisions for you in the event you are unable to do so.  


What is a Preneed Guardian?


A Designation of a Preneed Guardian allows you to select who you would prefer to handle specific affairs in the event you are incapacitated. 


How many Guardians can I appoint?


There are no limits to the number of Guardians you can appoint. Therefore, you can nominate individuals to act together, alone, and in a particular order of preference. 


What is the purpose of appointing a Preneed Guardian?


If you do not appoint a Preneed Guardian, then in the event you become incapacitated or incompetent to handle your own affairs, your loved ones would have to petition the Court to be appointed your Guardian. This is time-consuming and costly.


Who should I appoint as my Guardian?


Who do you trust with your affairs? Will that person act on your behalf and in your best interest? You will know your family members and friends better than anyone else. Thus, the person nominated should be someone you can trust. Additionally, the person you select should be someone that can handle affairs such as your medical and financial needs. 


What happens if I do not designate a Preneed Guardian and I become incapacitated?


It is crucial that you designate a Guardian to act on your behalf when you are competent to do so. Nonetheless, failure to nominate a Guardian, the Court may appoint a person to act as your Guardian. Under Section 744.312(2) of the Florida Statutes, the Court shall give preference as follows:


(1) individuals who are related to you by blood or marriage,

(2) individuals who have educational, professional, or business experience,

(3) individuals who can manage financial resources, or

(4) individuals who can meet the requirements of the law and the particular needs of your case.  


A Preneed Guardian is not required; however, it is a way to keep specific individuals from handling your affairs. Therefore, consider having an estate planning attorney prepare a Preneed Guardian on your behalf.


Who is not able to serve as my Guardian?


Individuals convicted of a felony are not able to serve as Guardians. Any individual who has an illness or is incapacitated is unable to serve as a Guardian. Additionally, if an individual provided services in a professional or business capacity, and is not a professional trust company, non-profit organization, a bank, or qualified person, then that individual also may not serve as a Guardian. Finally, your creditors would not be able to serve as your Guardian. 


Do I need to appoint a Preneed Guardian for my minor children?


Section 744.3046 of the Florida Statutes, states that both parents (natural or adoptive) may nominate a Preneed Guardian of the person, property, or both of the parent’s minor child(ren). However, the parents must do so by signing a written declaration that nominates the Guardians to serve if the last surviving parent becomes incapacitated or dies. Additionally, the parent must nominate an alternate Preneed Guardian if the first nominated Preneed Guardian refuses to serve, dies, or becomes incapacitated. 


Please contact Kimberly M. Soto at 321.972.2279 so she can further advise you as to the importance of having a Preneed Guardian. The Soto Law Office, P.A. is conveniently located in Altamonte Springs, Florida near I-4, and proudly serves Brevard, Lake, Orange, Osceola, Seminole, and Volusia Counties.

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