Given that the starting point for much of the professional guardianship abuse that occurs comes from the court’s predilection to nullify properly prepared advance directives of the proposed ward, it is appropriate to begin a dialogue about how to better protect those directives from being attacked and cast aside in order to enable the insertion of a favored professional guardian over the pre need selection.
NOTE: nothing herein is or should be construed as legal advice.
Dr. Sam Sugar is not an attorney.
Here is a general format that may be instructive and serve as a starting point for a dialogue about working with an attorney in crafting “the best” advance directives and preventing more abusive professional guardianships to be discussed with an attorney.
Suggested language for inclusion into advanced directives or wills or a codicil to an existing document
A section of your advance directives should include to your declaration for naming a preneed guardian.
Step one: nominate your preneed guardian of the person and several alternatives.
Step two : nominate your preneed guardian of the property and several alternatives.
In each situation nominate several alternate individuals as guardians of the person or property in case you first choice in unable to perform.
Step three: add the following paragraphs:
- I expressly disqualify and prohibit, under any circumstances, the appointment of any Professional guardian, whether temporary or otherwise, as defined in Florida Statute 744 or its successor statute, by any court of proper jurisdiction, over my person or my property at any time and for any reason. Any possible professional guardianship cannot be in my best interests.
- I hereby assert and confirm that I am fully capacitated and that there have been and are no assertions to the contrary by any party. Further, I assert that there has been no exertion of undue influence upon myself from any party in the preparation of this codicil.
- I expressly disqualify and prohibit any challenge to these, my advance directives, by any person or entity, known to me or not known to me, related to me or not related to me, including the court sua sponte, in any court of jurisdiction and for any reason including an allegation of my incapacity. These advance directives are specifically created to define my wishes and directions in the event that any future potential incapacity, partial or otherwise, might develop or ensue.
- These directives and only these directives are and shall be the definition of my best interests and are protected by my immutable rights. Under the protection of the United States Constitution, its Amendments, and the Bill of Rights, I specifically prohibit any court of jurisdiction from substituting its definition of what is in my best interests for my own properly stated and declared wishes as documented herein.
- Should any potential heir, family member, relative or descendent challenge these advance directives, that individual is immediately and forever barred from receiving any form of inheritance or benefit from my estate greater than the value of one United States Dollar.
- Any party, immediately upon filing themselves or through an attorney, any motion in a court of jurisdiction moving for a proceeding that would in any way result in a challenge to these directives, shall be disqualified as an interested person. That party is also disqualified and is permanently barred from being appointed as a guardian over my person or estate.
- I expressly forbid any court of jurisdiction from abridging, modifying, abrogating, nullifying or in any other way changing or sua sponte challenging these advanced directives for any reason. These are my wishes and my choices which only I can make as a fully capacitated citizen of the United States of America and the state of Florida. These advance directives are created of my own free will and without any undue influence being exerted upon me and as a fully capacitated person of sound mind.
- In the event of any allegation of my incapacity, this document is to be immediately and officially submitted by the preneed selection indicated in paragraphs 1 and 2 of the June 18, 2018 document to a court of jurisdiction, specifically to direct the court to act as per my declared best interests as described herein.
I, _______________, the declarant, sign my name and execute this instrument as my First Codicil to my Declaration Naming Preneed Guardian, and in the presence of two witnesses who are acting as witnesses at my request, in my presence and in the presence of each other, I hereunto sign my name on the__th day of __________, 2022.
The foregoing instrument was signed by ________the declarant, as First Codicil to Declaration Naming Preneed Guardian, in our presence, and we, in his presence and in the presence of each other have hereunto subscribed our names as witnesses on the___day of_______, 2022. ______________________