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02/13/14 It's The Law: Limited Competency Required to Appoint a Preneed Guardian

lt's The Law

Limited Competency required to appoint a Preneed Guardian



My mother has dementia. I am fighting my brother to be appointed guardian. A few years ago, my mother signed a document naming me her Preneed Guardian, but my brother claims my mother is incompetent and the document won't hold up. Is he right?


Section 744.3045 Florida Statutes authorizes any competent adult to name a Preneed Guardian to be that person's guardian in the event they become incapacitated. The designation may be introduced in a later proceeding concerning incapacity and creates a rebuttable presumption that the person appointed as Preneed Guardian is entitled to serve as guardian. The statute also states that the court is not required to appoint the Preneed Guardian if the court finds the person unqualified to serve as guardian.

Section 744.312 Florida Statutes lists factors to be considered in appointing a guardian. Relatives are given preference and the court is directed to consider any preference expressed by an incapacitated person.

A large percentage of guardians for adults are appointed because of dementia or other mental illness of the ward. In many of these cases, family members disagree on which member of the family should be appointed. If a Designation of Preneed Guardian has been executed, it may be challenged on basis that the ward lacked sufficient competence at time of execution. This is more likely if the ward's mental illness was progressive and/or of long standing. That argument was made in the case of Koshenina v. Buvens involving competency of Linda Koshenina. In 2010 at age 57, Linda began showing signs of mental deterioration. She was subsequently diagnosed with Pick's Disease, a rapidly progressive and terminal form of dementia. She lost ability to care for herself and was unable to live independently.

In January 2012, Linda's siblings successfully got themselves appointed emergency temporary guardians for Linda, claiming she was abused, neglected or exploited. The appointment was due in large part to an active investigation into abuse of Linda, based on a fall while she was at a 24 hour care facility. Since her bruises did not appear immediately, the staff at the facility reported the case as one of abuse, with the finger pointed at Linda's husband.

The investigation of abuse was terminated and Linda's husband filed Linda's Designation of Preneed Guardian appointing him as her Preneed Guardian. The attorney drafting the designation testified that Linda successfully completed a routine competency test administered by him at the time she signed the designation. The attorney's testimony by itself would probably have been enough, but there was also evidence that four weeks before signing the designation Linda failed certain cognitive tests during a neuro-psychological examination by her consulting neurologist. Her neurologist testified that Linda was "extremely impaired" in some tasks but not on others. The neurologist who began treating Linda a year after she executed the designation also expressed doubt as to whether she knew what she was signing at the time, but acknowledged that patients like Linda experienced lucid intervals in which they were able to function normally.

After a two day trial, the Judge found that Linda suffered no abuse by her husband but that Linda had done better in the care of her siblings than she had done in care of her husband. The court went on to note it had serious questions about whether Linda knew what she was doing when she executed the designation.

Linda's husband appealed and the appellate court reversed. The appellate court ruled the trial court had never determined whether Linda was competent at time she executed the designation. The appropriate test for determining competence in designating a preneed guardian is whether the ward had the capacity to generally understand the nature of the decision she is making and its implications. That test is analogous to the test used in testamentary capacity cases.

The court went on to explain that if the trial court found Linda sufficiently competent to execute the designation, it could not balance who would be the best guardian. It could only disqualify her husband under the statutes if the court found the husband disqualified to serve as guardian.

Many of these battles can be avoided if the person designating a preneed guardian did so at a time when competency was not in question. Unfortunately, many wait until the onset of dementia or other mental illness to start making plans. You will need a good attorney to make sure all pertinent evidence is presented to the court in your case but, even more than that, now might be the time for you to consider your own designation of a preneed guardian.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

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