744.3045
Preneed guardian.
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744.3045 Preneed guardian.—
(1) A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity.
(2) The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
(3) The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.
(4) Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.
(5) The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.
(6) If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
(7) Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.
History.—s. 21, ch. 89-96; s. 12, ch. 90-271.
Notes of Decisions
Cited in 16
cases (4 in the last 5 years), 1997–2024 · leading case: Glenda Martinez Smith v. J. Alan Smith
Glenda Martinez Smith v. J. Alan Smith (2017)
“See § 744.3045(1), Fla. Stat. (2016). -4- In December 2011, Glenda and Alan were married.”
Lowe v. Broward County (2000)
“Under the Act, a registered domestic partner has "the same right as any other individual to be designated as health care surrogate of his or her domestic partner pursuant to Part II of Chapter 765, Florida Statutes" and as "preneed guardian pursuant to section 744.3045, Florida…”
Glenda Martinez Smith v. J. Alan Smith (2016)
“” This was in compliance with section 744.3045(2)(a), Florida Statutes (2013).”
Butler v. Guardianship of Peacock (2005)
“See § 744.3045(4), Fla. Stat. (2002). In the instant case, after conducting an evidentiary hearing, the trial court concluded that the presumption in favor of appointing Butler to be Peacock's guardian as established by Peacock's pre-need declaration had been rebutted.”
Martinez v. Guardianship of Smith (2015)
“” § 744.3045(1), Fla. Stat. (2012). “Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.”
Acuna v. Dresner (2010)
“Moreover, Florida’s preneed guardian statute, section 744.3045, Florida Statutes (2009), provides for a statutory rebuttable presumption in favor of the designated preneed guardian serving as guardian.”
Miller v. Goodell (2007)
“" The trial judge considered the evidence presented but found the rebuttable presumption of the appointment of the designated preneed guardian had been overcome.”
Davis v. King (1997)
“Appellant filed a petition to intervene pursuant to section 744.3045, Florida Statutes (1995), claiming that she should be appointed the plenary guardian because she had been previously designated guardian in Ms.”
Gallagher v. Comprehensive Personal Care Services, Inc. (1997)
“Gallagher to be guardian of her person as well as her property, pursuant to section 744.3045, Florida Statutes (1995).”
Koshenina v. Buvens (2014)
“Section 744.3045(4), Florida Statutes (2010), provides in pertinent part that “[production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve.”
Orlando G. Silva v. Jorge E. Silva (2024)
“This principle is codified in section 744.3045, Florida Statutes, the preneed guardian statute.”
In Re: Amendments to the Florida Probate Rules - Guardianship (2020)
“§ 744.3045, Fla. Stat. Preneed guardian. § 744.”
— 744.3045(1) — 5 cases
Glenda Martinez Smith v. J. Alan Smith (2017)
“See § 744.3045(1), Fla. Stat. (2016). -4- In December 2011, Glenda and Alan were married.”
Martinez v. Guardianship of Smith (2015)
“” § 744.3045(1), Fla. Stat. (2012). “Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.”
Gallagher v. Comprehensive Personal Care Services, Inc. (1997)
“Gallagher to be guardian of her person as well as her property, pursuant to section 744.3045, Florida Statutes (1995).”
Orlando G. Silva v. Jorge E. Silva (2024)
“This principle is codified in section 744.3045, Florida Statutes, the preneed guardian statute.”
In Re Estate of Salley (1997)
— 744.3045(2)(a) — 1 case
Glenda Martinez Smith v. J. Alan Smith (2016)
“” This was in compliance with section 744.3045(2)(a), Florida Statutes (2013).”
— 744.3045(4) — 6 cases
Butler v. Guardianship of Peacock (2005)
“See § 744.3045(4), Fla. Stat. (2002). In the instant case, after conducting an evidentiary hearing, the trial court concluded that the presumption in favor of appointing Butler to be Peacock's guardian as established by Peacock's pre-need declaration had been rebutted.”
Martinez v. Guardianship of Smith (2015)
“” § 744.3045(1), Fla. Stat. (2012). “Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.”
Miller v. Goodell (2007)
“" The trial judge considered the evidence presented but found the rebuttable presumption of the appointment of the designated preneed guardian had been overcome.”
Acuna v. Dresner (2010)
“Moreover, Florida’s preneed guardian statute, section 744.3045, Florida Statutes (2009), provides for a statutory rebuttable presumption in favor of the designated preneed guardian serving as guardian.”
Koshenina v. Buvens (2014)
“Section 744.3045(4), Florida Statutes (2010), provides in pertinent part that “[production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve.”
— 744.3045(5) — 1 case
Orlando G. Silva v. Jorge E. Silva (2024)
“This principle is codified in section 744.3045, Florida Statutes, the preneed guardian statute.”
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