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Preneed Guardian Not Appointed: Court looks at Best Interest of Ward

By David M. Goldman

Miller v. Goodall, 958 So. 2d 952 (Fla. 4th DCA April 25, 2007)

A daughter filed a petition to determine her mother?s incapacity and be appointed as guardian.

The ward?s sister (daughter's aunt) also filed a petition seeking to be appointed as plenary guardian.

The court denied the sister?s petition and instead appointed a third party attorney as plenary guardian.
The sister appealed the case on two grounds, arguing:

1) the court lacked personal jurisdiction over the ward, and
2) the court erred by not complying with the ward?s preneed guardianship declaration that named the sister as guardian.

The appellate court affirmed, ruling the lower court had personal jurisdiction over the ward because the ward?s attorney had consulted with her and obtained her consent to jurisdiction. The trial judge found the presumption of appointment of the designated preneed guardian had been overcome.

The appellate court noted the trial judge had also considered section 744.3124, Florida Statutes which states the court shall appoint a preneed guardian "unless the court determines that appointing such person is contrary to the best interests of the ward" and had specifically found it was contrary to the ward?s best interests to appoint her sister.

Full post as published by Florida Estate Planning Lawyer Blog on March 17, 2008 (boomark / email).