There is no easy way to begin thinking about the topic of naming legal guardians for your children. Bluntly, you (and your spouse) die prematurely, or become incapacitated, at a time when your children are still minors, and someone else must raise them. It is a scary thought–one that gives us knots in our stomachs. We don’t want to die and leave our babies. Time is already going by so quickly and they are growing up too fast. How can we be expected to miss any more of their amazingness? And, how can someone else raise them? No one deserves to do it, but us. No can do it as good as we can.
This is rough, scary and really hard to contemplate for all of us. But it is something we must accomplish together. Remember, filling out the forms and thinking about it does not mean it will happen to you or that your legal documents will ever be needed. The purpose is to give you peace of mind, set up a plan for “what if,” and also to perform another healthy exercise–to help you start thinking about the values and ideals you want to share with your kids.
Avoiding the issue may make you feel better now, but once you think about the possible contingencies…possible foster care, the involvement of child protective services, extended court battles with relatives fighting about who will take over, your kids having to deal with the loss of you plus not having a support system in place with people they know and feel comfortable with… we suddenly realize now only do we need to act, but we need to act now.
WHAT IS A GUARDIANSHIP?
Guardianship is very similar to legal custody. Any adult can be appointed a legal guardian of a minor child. A guardian is appointed when the natural guardian (natural or adopted parents) or the previously appointed guardian can no longer serve in that capacity. A guardian assumes all the authority a parent would have. A guardianship is appointed by the Probate Court (a division of the Florida Circuit Court), thus, the proceedings would follow the Florida Rules of Probate.
HOW MANY TYPES OF GUARDIANSHIPS ARE THERE?
There are five types of guardians in Florida: plenary guardian of the person, plenary guardian of the property, limited guardian, preneed guardian, and standby guardian. A Plenary Guardian of the Person is a guardian responsible for the health, safety, and personal needs of the child; a Plenary Guardian of Property is a guardian responsible for guarding material belongings; a Limited Guardianship is where a guardian has less than full authority to act on behalf of the person for whom they are responsible. This can be issued if a parent has limiting disabilities and needs help caring for the child.
A Preneed Guardian for Minors is a legal document whereby parents may nominate a competent adult person to be guardian of their kids. It is you telling the Florida courts who you want to raise your children. Once the last parent becomes incompetent or dies, the preneed guardian can immediately act as the guardian. They would petition the Probate Court within 20 days of assuming the role for confirmation of appointment of the guardian. A Standby Guardian is similar to a preneed guardian, except the Probate Court appoints the guardian BEFORE the death or incapacity of the parent or guardian. This is used to ensure a smooth and clear legal transition of legal custody.
WHO NEEDS TO SET UP A PRENEED GUARDIANSHIP FOR THEIR KIDS?
Anyone with minor children needs these legal documents, though, most do not have them. In the event both parents die (or a parent abandons the children), someone will need to raise your kids. A guardianship is the most secure and permanent relationship available for a relative (next to adoption). The guardianship is permanent until the minor becomes an adult or the guardian is removed by the court. The guardianship is outlined according to the Florida Statutes.
WHAT DOES A GUARDIAN DO?
The guardian will protect your child, if you choose your guardian well. They will provide food, shelter, care medical assess, train, raise, discipline and mold them. It is up to you to provide the guidelines to raise your child and hopefully the financial resources to do so.
WHO WOULD I CHOOSE?
This is a major decision that takes in-depth planning and thought-provoking questions. This is tough stuff. It is almost worst than contemplating your own death, because now you have to think of the person or persons who will take your precious child in their arms, when you can no longer be there. As a mother and a lawyer, this is something that even I don’t like to consider as it brings up a rush of emotions.
You need to think very long and hard on this topic. You need to consider religious views, opinions about education, whether or not the guardians want to raise your kids, where they live, whether you would choose friends over family, among other things. Once you consult with me, I will send you a Pre-Meeting Questionnaire & Legacy Interview that will delve into a variety of issues that will help you determine what values are important and, thereby, what people are the best choice. Together we will create a list of people considering several factors such as their relationships, their families, their children, their assets and many other considerations.
It is very important to keep in mind that you should not appoint persons convicted of felonies, or those found to have committed abuse, neglect or abandonment of a child.
HOW DO I CARRY IT OUT?
You may appoint your guardian in your will or a standalone document. Either document can incorporate a great deal of detail about how your would like your child to be raised, and that will in turn be helpful information for your guardian. You can have a meeting with the guardian to discuss details, or leave them letters and/or videos. It is still possible that someone can challenge your guardian appointment and challenge the decision in court. However, after our consultation, I will give you advice and we will follow a plan to ensure that the wrong people do not end up raising your children. A judge would review the case and may overturn the guardianship in rare circumstances.
Per Florida Statute, you must appoint your guardian in writing. The document must include some things:
→The written declaration must reasonably identify the declarant and preneed guardian.
→It should be signed by the declarant in the presence of two attesting witnesses at the same time.
→The declarant may file this document with the court.
→Within 20 days of death or incapacity, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified per statute, the appointment must be confirmed. The preneed guardian then assumes the duties of the parent–caring for the child.
Keep in mind that it is important to use an attorney when appointing a guardian to help you create a legally binding appointment.
WHAT ARE SOME MISTAKES PEOPLE MAY MAKE?
While some parents do proactively appoint another couple to serve as guardians, they fail to consider, and plan for, several factors:
→failing to name sufficient alternate guardians;
→not considering several possible fact patterns (for e.g., you choose your best friend as guardian as well as her new spouse whom you don’t know well; they assume custody but then something happens to your best friend; you now have a person (the best friend’s husband) whom you don’t know very well legally raising your kids.);
→not naming temporary guardians to serve until the permanent guardians can be reached or arrive from another state or country;
→not considering financial resources of the guardians;
→not appointing separate guardians over your children, and their money;
→not having a plan in place to ensure your children have assets to live the life you want them to live, and having the opportunities for the best education, travel, and to fulfill their own personal interests;
→not helping to guide the guardians with child-rearing decisions by leaving a plan in place;
→not leaving a legacy behind to your children to support their emotional well-being through letters and recorded audios so your spirit can live on and your presence will be felt by them.