Advanced Directives vs. Guardianship… Which One Applies?
Most of my clients will do anything to avoid a guardianship court proceeding. Thus, we prepare advanced directives such as a durable power of attorney, designation of health care surrogate and a living will (“Advanced Directives”) which appoint people to act on the client’s behalf and hopefully avoid a guardianship court proceeding. The Advanced Directives also include naming a preneed guardian just in case a guardianship is necessary. These Advanced Directives cease upon death.
Section 744.3045(4) of the Florida Statutes provides a rebuttable presumption that, IF a guardianship is necessary, the individual named as preneed guardian in the Advanced Directives will control who will act as guardian unless the court finds that such an appointment is contrary to the client’s best interest or the named preneed guardian is not otherwise qualified.
In a recent case, Martinez v. Guardianship of Smith, Glenda Martinez, the preneed guardian named in her husband, Alan’s, Advanced Directives, appealed an order appointing a professional guardian, John, for Alan.
Alan was separated from his wife when he met Glenda. Alan and Glenda intended to get married and in October, 2009 Alan prepared all of his Advanced Directives naming Glenda as his health care surrogate, preneed guardian, and agent under his durable power of attorney. In January, 2010 Alan was in an automobile accident and became incapacitated. The court appointed Alan’s son as guardian. After the son resigned, the court appointed a professional guardian, John, as LIMITED guardian. The order stated that the right to marry was subject to court approval. Alan divorced his first wife and married Glenda on December 28, 2011. The validity of the marriage is subject to another appeal and not part of this discussion.
John then petitioned the court to be Alan’s PLENARY (or total) guardian because Alan was suffering from dementia. John argued that the designation of Glenda as preneed guardian was no longer viable because Glenda was no longer working in Alan’s best interest. Multiple proceedings ensued.
Glenda argued that she should be appointed guardian as she was named preneed guardian in the Advanced Directives. She argued that (1) there is a rebuttable presumption that she should act, (2) she was his wife so she should have preference and (3) a guardianship was not the least restrictive alternative because the Advanced Directives protected Alan (i.e., a guardianship was not even necessary as Alan had Advanced Directives and Glenda could act under those documents). The lower court granted John’s petition and revoked Glenda’s authority as health care surrogate.
The appellate court, however, determined that Glenda was entitled to the statutory presumption that she was qualified to serve as guardian, as she was named as the preneed guardian, unless her appointment would be contrary to the best interest of Alan. The appellate court then reversed the order appointing John as plenary guardian and remanded this case to a lower court for further proceedings. The appellate court also determined that the lower court erred in revoking the health care surrogate.
ADVICE: Always prepare Advanced Directives. While Advanced Directives do not always avoid cases like this, these documents will provide an alternative for a guardianship and the difficulties dealing with the courts in this matter. However, just because you have Advance Directive does not prevent someone from pursuing a guardianship, but the Advanced Directives have presumptive value.
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“Stare Decisis” (Latin term) – to follow the doctrine of precedent, whereby a court must follow earlier judicial decisions when the same points arise again in litigation