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Considerations in Choosing a Florida Guardian

There are many reasons to have Estate Planning documents prepared. For parents with minor children, the appointment of a child’s Guardian is among the most important.  Doing so may be a parent’s best chance at choosing a child’s guardian angel.

If a child’s parents die together in an accident, if there is a single parent or the parents are divorced and the surviving parent is found unfit, without an estate plan provision designating a Guardian, the appropriate Court will select a Guardian to care for the minor children. Florida law states a child under the age of eighteen (18) is a minor.  The Court’s appointment may be someone the parent(s) would not have chosen. If there is a surviving parent that has not been determined to be unfit, that parent according to Florida law will be the natural Guardian of the Person of the minor children. However, there will still need to be a court-appointed Guardian of the Property for the minor children.

The Court can appoint a Guardian of the Person if there are no surviving parents, or the surviving parent is unfit according to Florida law. The Guardian of the Person is responsible for the minor child’s daily well-being and care. The Court can also appoint, if necessary, a Guardian of the Property. The Guardian of the Property is responsible for managing the child’s financial matters. There may be one Guardian appointed to serve both roles, or two separate Guardians may be appointed; one to serve as Guardian of the Person, and one to serve as the Guardian of the Property.  The Guardianship of Person and Property continues until the child reaches the age of eighteen (18).

The court may appoint a single Guardian or Co-Guardians, to act at the same time.  If a single Guardian is chosen, it is wise to also choose an alternate Guardian in the event the original designated Guardian is unable or unwilling to serve.  It would be prudent to discuss your decision to designate a Guardian with the prospective Guardian. You should seek the assistance of an experienced and knowledgeable Florida Guardianship and estate planning attorney to assist you in these matters.

Designating a suitable Guardian or Guardians is critical. The Guardian must be qualified under Florida Law. There are emotional considerations involved regarding who will have care of the children, as well as the practical and financial matters.

Some topics to consider are:

• Whether the designated Guardian’s home is adequate to allow them to house a child or children. Whether they have adequate space to accommodate the children.
• Whether the designated Guardian is in a financial position to attend to the child or children. Financial support for the children should be set forth in your Will and/or Trust, along with life insurance proceeds and other monetary sources to support the child or children.
• Whether the designated Guardian is able to deal with any special needs or extra care the child or children may require.

There are multiple methods to deal with the on-going financial needs of the children. One such method is setting up a Florida Testamentary Trust. The Trustee would have authority to manage the child’s inheritance and make distributions as necessary to allow for the ongoing financial care of the children. Once the child reaches the age of majority, typically eighteen (18), the Trust would be distributed to the child. However, a Florida Testamentary Trust or Florida Revocable Living Trust can also be set up to distribute at specific ages rather than at eighteen (18). Therefore, you can designate that the distribution does not occur until the child is older, such as age twenty-five (25), then at age thirty (30), and the remaining balance at age thirty-five (35).  There are many advantages of this planning, for example, it allows for financial distributions and financial control beyond the age of eighteen (18). For more information regarding Florida Testamentary Trusts and Florida Revocable Living Trusts, you should seek an experienced and knowledgeable Florida Guardianship and Estate Planning attorney.

If you have any questions, or would like to further discuss this, or other Guardianship or  Probate Administration matters please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7600, and visit my website at www.AnnMarieGildenLaw.com

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create any attorney client relationship.