An individual’s personal decision to name a preneed guardian may prove to be vitally important.  A competent adult is permitted to select a preneed guardian by making a written declaration that names a specific guardian to serve in the event of the person’s incapacity.  Section 744.3045(1), Florida Statutes.  In the event that a proceeding to determine incapacity is initiated, a valid written declaration naming preneed guardian constitutes a, “rebuttable presumption that the preneed guardian is entitled to serve as guardian.”  Fla. Stat. 744.3045(4), Florida Statutes.   However, a Court is not bound to appoint the preneed guardian if such person is found to be “unqualified” to serve as guardian.

The Court in Koshenina v. Buvens, 2014 WL 304889 (Fla. 1st DCA 2014) recognized that a Court’s decision to override a personal designation of whom a person wants to act on his or her behalf on private, personal health matters is potentially life-altering.  In November of 2010, Linda Koshenia, who was fifty-seven years old, executed a designation of preneed guardian naming her husband, James, as her guardian.  Tragically, Linda was diagnosed with Pick’s disease that same year.  The disease is a rapidly progressive terminal form of dementia.

Linda moved out of her marital home into a 24/7 care facility and fell on her first day there, injuring herself.  As a result of Linda’s fall and a perceived lack of proper care by Linda’s husband, Linda’s two siblings instituted a proceeding to determine that Linda was incapacitated and for the appointment of themselves as Linda’s guardians instead of her husband.  Surprisingly, the Trial Court made the decision to override Linda’s designation of her husband as her preneed guardian, finding that it was not in Linda’s best interest to honor her preference.

The Appellate Court reversed the Trial Court’s decision and remanded the proceedings back to the Trial Court so that a new determination could be made.  The Appellate Court held that, in considering the applicability of a designation of preneed guardian, a two prong determination is required.  Firstly, the Trial Court must determine, via the weight of the evidence presented, if the individual possessed the capacity to generally understand the nature of the decision he or she was making in naming a preneed guardian and its implications.  Secondly, the Trial Court must then honor a person’s declaration of preneed guardian unless it is able to make a specific factually-supportable decision that appointing someone else is contrary to the individual’s best interests.

In coming to its ruling, the Appellate Court recognized that a person’s designation of preneed guardian, “is one of life’s most intimate and important decisions involving highly personal and private judgments about who will provide care, love, and support when persons are unable to do so for themselves.”  It is for this reason that the Appellate Court required an approach that gives greater deference to a person’s designation, requiring a specific evidentiary showing that the nominated guardian should not serve because his or her appointment is contrary to the incapacitated person’s best interests.

Please contact the attorneys of Boyes & Farina, P.A. with any questions concerning estate planning, guardianship, probate or trust disputes, at (561)694-7979 or