Once you have kids, your perspective on what is important in life changes. Should you die, you want to be sure that your minor children are taken care of through legal guardianship. Most people will create a Will naming a guardian in the event of their death. However, you should know that the court will look to the best interest of the child if your Will isn’t immediately located.
Most states provide that a parent can appoint a guardian for his or her minor child in a Will. Unless the designated person is not appropriate, he or she is recognized as the child’s Guardian of the Person.
For example, Margie and Frank have a child, Chasity. They decide they want to plan for the child’s future in the event of their untimely demise. They execute a will and designate Gary to be the guardian of Chasity in the event they die before the child is an adult. Unfortunately, Margie and Frank die in a multi-vehicle accident when Chasity is just three years old. Chasity will immediately go to the custody of Gary once the Will is found. The court will then look to make sure that Gary is an appropriate caregiver. The court will appoint a new guardian if it feels Gary is not appropriate.
Most States allow a biological parent to appoint a guardian for his or her child by Will. However, a parent can lose this right. For example, Pennsylvania law states that if that parent has not provided for the child in any manner for a year or more prior to his or her death, then that parent cannot appoint a guardian of the child. 20 Pa.C.S. 2519(a).
Most states do not provide a system where parents designate a guardian which is filed with the state. Florida is one of the exceptions.
Florida law favors a procedure where parents designate a “preneed guardian” for a minor. The parent or parents file a written declaration with the clerk of the circuit court. Fla. Statute 744.3046. Upon the death of both parents, the preneed guardian takes effect immediately. Then, the Guardian will seek court confirmation. At that time, the court will confirm the Guardian unless that person is found not to meet the qualifications required by Florida law, and it is determined that the appointment would not be in the best interest of the child. Fla. Statute 744.3046(7), 744.312(4).
Although a guardian can be named in a Will, Florida law provides that the courts only have to consider the suggestion of a person named, and Florida courts have an obligation to honor the designation of a preneed guardian. Fla. Statute 744.312(3)(c). If the court determines that the person in the preneed guardian role does not meet the qualifications, or the placement of the child is not in the child’s best interest, then the court must appoint a designated preneed guardian that is deemed appropriate. Fla. Statute 744.312(4).
Let’s change some facts in the above example. Margie and Frank live in Florida. They completed a preneed guardian form and filed it with the Clerk of Court who named Genie as Chasity’s guardian. A year later, after getting into an argument with Genie, they executed a will naming Gary as the child’s guardian. When Chasity is three years of age, they die in a car accident. The court will appoint Genie as the child’s guardian so long as that appointment is found to be in the child’s best interest. Fla. Statute 744.3046.
This is a very personal decision, which gives many people angst; who should care for your children in your place if you should die? You know your children better than anyone, and you have your philosophy of parenthood, which you will likely want to have the Guardian share. Here are some thoughts that might help you make your decision.
The choice of a Guardian is an important part of your estate plan. The best advice is honest about the potential Guardians and your children, and the right choice will likely present her/himself.
A Plenary Guardian of the Person is given the power to make all necessary decisions for the Ward. For example, deciding where the Ward lives and which doctor the Ward visits. A Limited Guardian of the Person will only have the power to make decisions for the Ward that the judge allows.
Guardianship of Minors refers to the court appointing someone Guardian of the Person or Guardian of the Estate for an orphaned minor.
Interested persons can have a Guardianship Attorney petition the court asking for the appointment of a temporary guardian or Guardian ad litem, to represent the child’s interests.
A Guardian ad litem is a person, often an Estate Planning Lawyer, a judge appoints to represent a minor child’s interests in litigation. The Guardian ad litem speaks for the child’s best interest and might submit reports and investigate.
If you have minor children, you should have a document that appoints a temporary guardian for your children should both parents be unavailable or unable to make medical decisions for the minor children. Often overlooked, Peter Klenk has been drafting these documents for clients for years.
For example, if you are a Pennsylvanian and you and your minor child are in a car accident that leaves both you and the child’s other parent unconscious, a Temporary Guardianship will appoint someone who has the immediate authority to make medical decisions for your minor child until you regain the ability to make those decisions.
Your Will might appoint a guardian for your child if you have died, but in this circumstance, you are not dead but are instead unconscious. The will does not apply. The Temporary Guardianship document fills that gap.
If you have any questions about Guardianship of Minors or any other estate law topics, please contact us to schedule a free consultation. For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate law and planning techniques clearly and concisely. We make it easy for you to understand Guardianship of Minor Children so you can make the best decisions for yourself and your family.
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