What it means
A competent adult may name a preneed guardian by a written declaration that names the person to serve if the declarant becomes incapacitated. The declaration must reasonably identify the declarant and the preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
The declarant may file the declaration with the clerk of the court, and the clerk must produce it when a petition for incapacity is filed. Producing it in the incapacity proceeding creates a rebuttable presumption that the preneed guardian is entitled to serve, but the court is not bound to appoint a preneed guardian found unqualified. If the preneed guardian refuses to serve, a written declaration appointing an alternate creates the same kind of presumption for the alternate.
The preneed guardian assumes the duties of guardian immediately upon an adjudication of incapacity and, within 20 days after assuming them, must petition for confirmation of appointment. If the court finds the preneed guardian qualified under ss. 744.309 and 744.312, the appointment must be confirmed. The confirmed guardian files an oath and any required bond, and letters of guardianship are then issued.
- A competent adult names a preneed guardian by a written declaration; it must be signed before at least two attesting witnesses present at the same time (§ 744.3045(1)-(2)).
- The declarant may file the declaration with the clerk of the court, and the clerk produces it when a petition for incapacity is filed (§ 744.3045(3)).
- Production in the incapacity proceeding creates a rebuttable presumption that the preneed guardian may serve; an unqualified nominee need not be appointed (§ 744.3045(4)).
- The preneed guardian assumes the duties of guardian immediately upon an adjudication of incapacity (§ 744.3045(5)).
- A written declaration naming an alternate gives the alternate the same presumption if the preneed guardian refuses to serve (§ 744.3045(6)).
- Within 20 days after assuming duties, the preneed guardian petitions for confirmation; a qualified guardian must be confirmed (§ 744.3045(7)).
Text of the statute (2026)
(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.
Excerpts are the subsections the summary relies on. Read the full official text of § 744.3045.
History. s. 21, ch. 89-96; s. 12, ch. 90-271.
How it applies
The declaration operates inside an incapacity proceeding under ss. 744.3201 and 744.331. It does not itself appoint a guardian: the court adjudicates incapacity, and the nominee then has 20 days to petition for confirmation under subsection (7).
Filing with the clerk is optional under subsection (3), unlike s. 744.3046(3), which says the declarant of a declaration naming a guardian for a minor must file it. The presumption in subsection (4) is rebuttable, and the court may decline to appoint a nominee it finds unqualified.
Where this shows up
Pages on this site where § 744.3045 does real work:
- When to update a Florida estate plan: marriage, divorce, a birth, a death, a move, new assets and incapacity, what Florida law changes automatically and which documents to review after each event
- Florida will checklist: who may make a will, signing and witness rules under section 732.502, the self-proving affidavit, and decisions on beneficiaries, personal representative, guardian and homestead
- Casey Kasem
- Groucho Marx
Questions people ask
Sources
- Florida Statutes (2026), s. 744.3045, Florida Senate (Subsections (1) to (7): the declaration, witnesses, filing, rebuttable presumption, alternate, and confirmation. Quote: "A competent adult may name a preneed guardian by making a written declaration")
- Online Sunshine, Florida Statutes (2026), s. 744.3045 (Text, catchline, and History line checked against this page on 2026-10-17.)
- Florida Statutes (2026), s. 744.3046, Florida Senate (Comparison: declaration for a minor child must be filed with the clerk.)
Last checked: October 17, 2026
Published by the Probate.Help editorial team.How these pages are written and checked.