Pre-Need Guardianship in Florida

No parent wants to imagine not being there to take care of a child during the crucial years before they reach maturity and are legally able to make their own financial, medical, and other important life decisions. But a fatal accident or quick-developing terminal illness can deny a child of his or her parent without warning. Parents need to have peace of mind that their minor children will be cared for by a person they trust.


Written and edited by our team of expert legal content writers and reviewed and approved by Attorney Jeffrey Thomas.

Content last modified: December 30, 2022
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When both parents (or a single parent) die or become incapacitated while their child is still a minor, the court will appoint a legal guardian to assume the parents’ responsibilities until the child reaches maturity. Designating pre-need guardianship for a minor allows parents to plan in advance for the possibility that someone other than themselves may need to make these important decisions on their child’s behalf at some point and to ensure the person appointed to do so is someone they trust.

Pre-Need Guardianship in Estate Planning

Orphaned children aren’t the only people who may someday need a guardian. Any adult, particularly an older person who may soon require care, should designate a pre-need guardian for him- or herself in case he or she should become incapacitated, either mentally or physically. A pre-need guardianship should be a standard aspect of estate planning for all adults. However unpleasant to think about, Alzheimer’s and other forms of dementia are becoming more common for people of advanced age, and the numbers of people with early-onset dementia are also on the rise.

An estimated 6.5 million Americans age 65 and older are living with Alzheimer’s dementia in 2022. That represents roughly 1 in 9 people (10.7 percent) age 65 and older that suffer from this disease, according to the Alzheimer’s Association. By 2050, the number of Americans in this age range living with Alzheimer’s is projected to nearly double to 12.7 million.

It is critical to plan ahead for these kinds of circumstances by designating a pre-need guardian who will act with your best interests at heart.

Because Florida law permits both voluntary and involuntary guardianships, an additional benefit of designating a pre-need guardian to make decisions on your behalf is that it will protect you from potential abuse and exploitation by someone who you do not trust to take control of your life and assets. A guardianship attorney in Stuart, FL can ensure you and your family are prepared for these situations.

Filing a Declaration of Pre-Need Guardianship

In Florida, appointing a pre-need guardian starts with filing a Declaration of Pre-Need Guardianship with a Circuit Court clerk in the county where you live. The Declaration names the declarants (parents), the child, and the person to be appointed as their child’s guardian once the last surviving parent dies or becomes incapacitated.

An alternative to the pre-need guardian can also be designated in the Declaration, which is useful in the event that the original designee refuses to assume the duties, decides later not to follow through or dies or becomes incapacitated. Both declarants (parents) or one declarant (a single parent) must sign the declaration in the presence of two witnesses at the same time who will attest to it.

Who Is Qualified to Be a Pre-Need Guardian?

To be a pre-need guardian in Florida, a person must be at least 18 years old and be a resident of the state. A non-resident of Florida may qualify if he or she is either related by blood to the ward or related to a blood relative. A pre-need guardian cannot be a judge unless the judge is related by blood to or has a close relationship with the ward, in which case the judge agrees to serve without being paid.

No one who has been convicted of a felony or, to be the guardian of a minor, has been found guilty of abuse, neglect, or abandonment of another child, qualifies to be a pre-need guardian. A pre-need guardian also cannot be a creditor or anyone else for whom a conflict of interest exists, financial or otherwise.

What Are a Pre-Need Guardian’s Duties?

Because a pre-need guardian has financial and personal responsibilities for the ward, he or she must not act contrary to the ward’s best interests. The guardian must exercise his or her authority over the ward in such a way as to

Within 20 days of assuming a guardian’s responsibilities, a pre-need guardian will need to petition the court to confirm the appointment.

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Designation of Pre-Need Guardian in Florida

Safeguarding a beloved family member from abuse and exploitation isn’t something you can leave to chance. If you and your family live in Stuart or another city on Florida’s Treasure Coast and want to protect your child, an aging parent, or yourself in the event of death or incapacitation, an experienced guardianship lawyer at Travis R. Walker, P.A. can guide you through the required steps to designate a pre-need guardian.

For a consultation about pre-need guardianship in Florida, contact our offices in Stuart and other locations in Martin County.

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