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Requirements of competency in appointing of a guardian

Struggles over be appointed guardian can be emotionally draining. For example, the circumstances of children of an elderly parent who no longer can take care of his or her self can sometimes end up pitting siblings against each other.

Under Florida law a competent adult can name someone to be their preneed guardian in the event of incapacitation.  While the designation does create a rebuttable presumption that the named guardian should be entitled to take on that role, courts are given certain leeway in the event that the individual proves to be unsuitable to be a guardian.  Florida law also gives relatives preference to serve as guardian and courts will also need to consider preferences expressed by that incapacitated person. 

There are occasions that the guardian designation can be challenged in court should the individual making the designation prove to have had insufficient competence to make such a decision. Such challenges would most likely be upheld if the ward's incompetence was long-standing or progressive in nature.

Obviously it would be best if any designation of a guardian would be made when there was no question concerning the competency of the individual making the designation. Too often people put off making these determinations until mental illness or dementia has already set-in. Especially under these types of circumstances, the services of a good estate planning attorney will prove extremely helpful.

Attorneys can assist those going through the incapacity determination phase and any subsequent legal proceeding. Attorneys can also provide continued guidance for individuals who are appointed guardians. This is too important of an issue to leave to chance.

Source: Marco News, "It's The Law: Limited competency required to appoint a preneed guardian," William Morris, Feb. 14, 2014

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