Koshenina v. Buvens

Kosheniva v.  Buvens, --- So.3d --- (Fla. 1st DCA 2014), 2014 WL 304889

At issue in this case was the proper standard for reviewing (and possibly overriding) a ward's designation of a pre-need guardian.  Here, the ward named her husband as her preneed guardian at a time when her capacity to do so was questionable.  The trial court initially named her sibligns as her emergency temporary guardians, and ultimately appointed them as her plenary co-guardians instead of her husband. 

The Appellate Court had two distinct problems with the trial court's analysis:

(1) Validity of Declaration of Preneed Guardian

After hearing evidence from her lawyer, who said the ward was competent when she executed the Designation naming her husband as her preneed guardian, and conflicting evidence from doctors regarding her ability to execute such a document, the court held that it "seriously questioned" her ability to know what she was doing when she executed the Designation and ultimately held it was in her best interests for her siblings to act.  It did not, however, make an actual ruling on whether the ward was competent when she executed the designation.  

The Court held that the trial court must make a definite ruling on this issue, and explained, "whether a ward was competent to make a decision regarding who will be her preneed guardian, is whether the ward had the capacity to generally understand the nature of the decision she is making and its implications."  It said that if on remand, the ward was determine to have been competent to execute the Designation, then that designation is entitled to a rebuttable presumption, discussed below.

(2)  Standard for Overriding Declaration of Preneed Guardian 

The Court then considered the proper standard for overriding a ward's properly designated preneed guardian.  F.S. 744.3045(4) provides that, "[p]roduction of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve."  But, the trial court is not bound to appoint the preened guardian if that person is found disqualified.  Even if the person designated is qualified to serve, F.S. 744.312(4) states that the court should appoint the preneed guardian, "unless the court determines that appointing such person is contrary to the best interests of the ward."  

The trial court's finding only stated that appointing the ward's siblings was in the best interests of the ward.  The Court held that the proper standard for overturning a properly executed designation of preneed guardian would be a determination that the appointment would be "contrary to the best interests of the ward."  The Court explained the distinction between "best interests" and "contrary to the best interests," by emphasizing the importance of giving the ward's designation great weight.  It held that at a minimum, a finding that another relative might be a better caregiver is not enough to satisfy F.S. 744.313(4).  Instead, the Court held, F.S. 744.312(4) requires a hurdle to show that specific actions/inactions of the designee are sufficiently egregious as to be "contrary to" the "best interests" of the ward thereby justifying a change in the status quo.  


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