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Estate Planning: Pre-Need Guardian Designation

The recent 1st District Court of Appeals ruling in Koshenina v. Buvens, — So.3d —-, 2014 WL 304889 (1st DCA January 29, 2014) further enhances the reasons why every Florida estate plan should include a pre-need guardian designation. In Koshenina, a family dispute arose between a husband and an “allegedly” incapacitated wife’s children from a prior marriage (not an uncommon occurrence). Despite the existence of less restrictive alternatives, the children successfully petitioned for their appointment as emergency guardian over their mother. In response, husband filed a notice of “Designation of Preneed Guardian” which his spouse had previously executed designating him as her preneed guardian.

After an extended trial, the Probate Judge concluded that wife’s children had done a better job in caring for their mother and that husband’s personality and social skills were not conducive to making appropriate decisions for her care. As a result, the Court concluded that it was not in wife’s “best interest” to follow the Designation of Preneed Guardian “because of the [c]ourt’s findings regarding events subsequent to the execution of this document” and appointed her children as the Co-Plenary Guardians.

On appeal, the 1st DCA reversed the Probate Court and concluded that “the plain reading of section 744.312(4) requires an approach that gives greater deference to [his wife’s] designation and requires a showing that … her husband should not serve as her preneed guardian because his appointment “is contrary to” her “best interests.”

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About the Author

Marc Soss, Marc J. Soss, Esq.
Sarasota, FL 34236
(941) 928-0310

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