Florida Estate Planning Lawyer Blog
The short and quick answer is yes, it is a possibility, but you should first be familiar with applicable Florida Statutes and some definitions before proceeding. A Nomination of Successor Guardian is a document drafted and notarized by a current guardian of an incapacitated person. It names who the guardian would want to take their place upon their death or incapacity. It is not approved by a court and isn’t necessarily filed with the court either.
We will use the following example:
Your loved one, your niece, has been deemed incapacitated by a court order and her mother, your aunt, is currently serving as her plenary guardian. This means your aunt is the guardian of your niece’s person and property. Your aunt suddenly passes away and you find out she executed a Nomination of Successor Guardian naming a professional guardian to serve as your niece’s guardian upon her passing. However, you believe it is in your niece’s best interest for you to serve as her guardian and you want to. Your question is, are you able to oppose the petition filed by the named successor guardian and become the guardian of your niece? As stated above, yes, it is a legal possibility.
Florida Statute 744.312 governs what should be considered when appointing a guardian or successor guardian. The first consideration is whether there is a standby guardian when appointing a successor guardian. A standby guardian is one that has been nominated by an already appointed guardian AND approved by the court. A standby guardian shall be appointed unless it is not in the best interest of the incapacitated person. When a Nomination of Successor Guardian has been executed, but not filed or approved by the court, how much weight it is given is in the Court’s discretion. However, if the nominated guardian brings a petition before the court to become the successive guardian, the court would likely give it a lot of consideration since they are willing to serve. If the court has not previously approved a standby guardian, preference is first given to blood or marriage relatives who are qualified to serve as a guardian.
If you are contemplating opposing a Nomination of Successor Guardian, contact the Law Office of David M. Goldman, PLLC today. An attorney can assist you with deciding if filing an opposition is in the best interest of your loved one. In Florida, you must be represented by an attorney in order to become the guardian of an incapacitated person.