Florida's guardianship framework is designed to respect and honor an alleged incapacitated person (AIP)'s wishes to the greatest extent possible. While a will cannot be contested until after death, disputes may arise during life concerning the welfare, safety, and assets of a vulnerable adult. Therefore, it is paramount that a person cultivates an estate plan which clearly sets out their preferences. This should often include a discussion with their trusted loved ones about how they want their interests represented if they become incapacitated.

Advanced Directives Empower Individuals

A comprehensive estate plan should include advance directives such as a durable power of attorney (DPOA), designation of health care surrogate (surrogate designation), and declaration of preneed guardian (preneed). If a court finds a person is incapacitated, the court must then consider whether there are lesser restrictive alternatives to guardianship that would sufficiently address the incapacitated person's issues. A DPOA and a surrogate designation and preneed, along with a trust are lesser restrictive alternatives to guardianship that should protect the incapacitated person's assets and interests. Mental weakness alone is insufficient reason for a court to set aside an advanced directive so long as it can be shown that the individual, at the time of signing the documents, had the capacity to generally understand the nature of their decision and its implications. If a court finds that the lesser restrictive alternatives are insufficient, there is a rebuttable presumption that the person(s) nominated under the preneed should be appointed as guardian. This can only be overcome by substantial competent evidence. If the court determines the preneed is unenforceable, it will usually appoint one or more family members, but it will appoint a professional guardian if there is irreconcilable adversity or disagreement among the AIP's family members.