Can You Revoke a “Preneed Guardian” Designation After You Are Found Incapacitated?

When a Florida court determines that an adult suffers from “limited capacity,” the judge may appoint a guardian to exercise certain legal rights and decision-making authority on that adult’s behalf. And while trial judges typically have broad discretion to decide who should serve as guardian in these cases, Florida law does recognize the appointment of what are known as “preneed guardians.” Similar to an agent named under a power of attorney, a preneed guardian is someone appointed by a competent adult to assume the role of guardian should it become necessary.

The preneed guardian law is considered “self-executing.” In other words, once the court determines that an adult is incapacitated, there is a “rebuttable presumption that the preneed guardian is entitled to serve as guardian.” That said, the court is not required to appoint a preneed guardian who is not legally qualified to serve in that role.

Florida Appeals Court Rejects Retiree’s Request to Replace Son as Guardian

It is also not possible for an adult who has been judged incapacitated to revoke or change a preneed guardian designation after the fact. The Florida Third District Court of Appeal recently addressed such a case. In Silva v. Silva, the ward is a retired oncologist. In 2016, the still-competent ward signed a Declaration of Preneed Guardian, designating one of his sons to serve as guardian should the need arise.

Over the next several years, the ward’s financial situation and personal health declined following the death of his wife. At one point, the ward’s sons became concerned that their father’s new intimate partner was “draining his bank accounts and otherwise dissipating his resources,” according to court records. Eventually, in late 2022, the sons petitioned a Florida court to create an emergency temporary guardianship for their father.

A judge granted the request, appointed the son designated as a preneed guardian to serve as guardian, and appointed a three-member examining committee to examine the ward, as required by Florida law. In early 2023, the court issued a final determination that the ward was “partially incapacitated” and continued the temporary emergency guardianship. At a subsequent evidentiary hearing, the ward said that he “revoked” his prior preneed guardian designation and now wanted a professional guardian to serve in that role. The court rejected that request and named the son as the permanent, limited guardian.

On appeal, the Third District agreed with the trial court that that the ward could not introduce a “post-dated” declaration undoing his earlier preneed designation. The problem was that at the time the ward allegedly signed the second declaration, “he was no longer a competent adult,” and therefore could no longer designate a preneed guardian.

Contact a Florida Guardianship Litigation Attorney Today

Adult guardianships are, by their very nature, intrusive and should only be created as a last resort to assist a person who is no longer capable of managing some or all of their own affairs. If you are involved in such a situation and need legal advice or representation from a qualified Pompano Beach guardianship litigation lawyer, contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.

Source:

3dca.flcourts.gov/content/download/2435817/opinion/Opinion_2023-0811.pdf