Martinez v. Smith, ___ So. 3d ___, 40 Fla. L. Weekly D695 (Fla. 4th DCA March 18, 2015)
“A rebuttable presumption exists that the preneed guardian is entitled to serve as guardian” unless “the preneed guardian is found to be unqualified to serve as guardian” or the appointment of the preneed guardian would be “contrary to the best interests of the ward.” In this case, “[t]he trial court abused its discretion by failing to honor the ward’s choice of guardian without finding that appointment of his designated preneed guardian was contrary to his best interests.” “The trial court’s finding that [the preneed guardian] ha[d] moved the ward several times and d[id] not communicate well with the present [nursing] facility’s staff d[id] not show that [the preneed guardian] ‘abused powers’ granted to her by the designation. The [preneed guardian] had the authority to transfer the ward, and the trial court made no findings that the various transfers were contrary to the ward’s best interest. Nor would this record support such a finding. There were adequate reasons for each transfer, which were largely uncontested by [the professional guardian whom the trial court appointed instead of the preneed guardian].” “Nor would conflict and difficulty communicating with the staff at the [nursing] facility be an abuse of power. Although [the professional guardian] contended that the [preneed guardian] was interfering with the ward’s care, the testimony show[ed] that the [preneed guardian] was demanding more care for the ward than the staff thought was required. Since the ward left decisions regarding his care to the [preneed guardian], and not the staff of the facility, this cannot be treated as an abuse of power, unless her decisions [were] contrary to his wishes, as expressed in the designation. No one [showed] that they [were]. For these reasons, [the court] conclude[d] that the trial court erred in revoking the designation for [the preneed guardian’s] abuse of power.”
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