Worley Elder Law
Must Do: Name a Guardian for Your Minor Child(ren)
Updated: Sep 7, 2018
We know it seems impossible. Thinking about someone else raising your children stops us all in our tracks. It feels overwhelming and too horrific to even consider.
But you must.
If you don’t, a stranger will determine who raises your children if something happens to you - your child’s guardian could be a relative you despise or even a stranger you’ve never met.
No one will ever be you or parent exactly like you, but there is someone who will love your child(ren) unconditionally and will provide for your children’s general welfare, emotional, educational, and medical needs. Parents with minor children need to name someone to raise them (a guardian) in the event both parents become incapacitated or die before the child becomes an adult. While the likelihood of that actually happening is slim, the consequences of not naming a guardian while you have the chance could cost your children the enjoyable and successful life you envision for them.
If you fail to properly plan for your children’s future, a judge - a stranger who does not know you, your child, or your relatives and friends - will decide who will raise your child. Anyone “interested in the child’s welfare” can ask to be considered, and the judge will select the person they deem most appropriate. While someone could legally disagree and appeal the decision, that takes time and money, with your children being stuck in the middle of the battle. And unfortunately, families tend to fight over children, especially if there’s money involved.
What could be worse than family fighting over your children? The opposite option- no one is willing to step up and be named guardian. If that happens, the judge will place your children in foster care, hopefully keeping them together if there’s more than one child.
So, what can you do? How can you prevent the worst possible scenario of the worst possible scenario from coming true? You, as the parents, can name an individual (or more than one) to act as a guardian for your minor child(ren). This can be done by filing a “Pre-Need Guardian of a Minor Child” document with the court. While it’s certainly not required you file a separate document with the court, Florida law tends to favor this option.
But you’ve already named a guardian in your Last Will & Testament? We applaud you for taking the proactive approach! However, naming a guardian in your Last Will does not automatically entitle that individual to assume the role when the time comes. Your Last Will must first be probated, the named guardian must file an acceptance of appointment and then the court must sign an order creating the guardianship and placing the guardian under the control of the court. Additionally, although you are certainly free to name a potential guardian in your Last Will, Florida law provides that the courts only have to consider the suggestion of a person named.
While Florida law requires the court to only consider someone named in a Last Will, it emphasizes that Florida courts have an obligation to honor the Designation of Pre-Need Guardian. Naming a guardian separately also allows the named individual to step in immediately in the event both parents are incapacitated or have died. The guardian will still have to be confirmed by the court, but unlike the Last Will, they don’t have to wait to open probate and fight for court dates before the person you selected can be there for your children.
Okay, you recognize why this is important and you’re going to push through the lump in your throat to make sure your children are properly cared for. So what’s next? You have to choose who you’ll name. This may not be as easy as you think...
How to Choose a Guardian
Your child’s guardian can be a friend (if they live in-state) or a relative (in or out of state). Here are some factors our clients have considered when selecting guardians (and backup guardians- ALWAYS have a backup plan!).
How well the child and potential guardian know and enjoy each other.
Their parenting style, moral values, educational level, health practices, religious/spiritual beliefs.
Location - if the guardian lives far away, your child would potentially have to move from a familiar school, friends, and neighborhood.
The child’s age and the age and health of the guardian-candidates:
○ Grandparents may have the time, but they may or may not have the energy to keep up with a toddler or teenager.
○ An older guardian may become ill and/or even die before the child is grown, so there would be a double loss.
○ A younger guardian, especially a sibling, may be concentrating on finishing college or starting a career.
○ Someone who is single or who doesn’t want children may resent having to care for your children. (Think “Raising Helen” without the Hollywood ending...)
○ Someone with a houseful of their own children may or may not want more around.
ATTENTION: Serving as guardian and raising your child(ren) is a big deal; don’t spring such a responsibility on anyone. Talk to your top candidates and ask how they feel and if they would be willing to serve, and be sure to name at least one alternate in case the first choice becomes unable to serve.
Who’s in Charge of the Money?
Raising your child should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. You will need to provide enough money (from assets and/or life insurance) to provide for your child. Some parents also earmark funds to help the guardian buy a larger car or add onto their existing home, so there’s plenty of room for extra children.
Factors to consider:
Naming a separate person to handle this money can be a good idea. That person would be a guardian of the estate or a trustee, but not guardian of the children. (Think of it this way- Guardian of the Children are the ones who help them brush their teeth, tuck them in at night, and go to school conferences. Guardian of the Estate oversees the assets left for the child(ren) and pays for the ballet lessons or soccer uniforms).
However, splitting the duties is not required and having the same person raise the child and handle the money can make things simpler because the guardian would not have to ask someone else for money.
But the best person to raise the child may not be the best person to handle the money and it may be tempting for them to use this money for their own purposes.
Compromise Will Likely be Necessary
Naming a guardian is a difficult decision for most parents and not just because of the gut wrenching thought of someone else being there because you’re not. We have seen parents who were confident in their selection say the potential name out loud in front of the other parent, and very loud “discussions” commenced. Everyone has their strengths and weaknesses. As a team you’ll have to come to an agreement over who to name in the best interest of your child.
While the odds are that at least one parent would survive until the last child reaches adulthood, by naming a guardian, you are being responsible and planning ahead for an unlikely, yet possible, situation. It’s important to realize that no one besides you will be the perfect parent for your child, so typically this means making compromises in some areas. Select the person you think will love your child(ren) unconditionally.
Let’s Continue this Conversation
We know it’s not easy and quite frankly sucks, but don’t let that stop you. We’re here to help and talk this through with you and legally document your wishes. And it’s okay to change your mind down the road. The chances of needing the guardian may be slim, but you’re a parent and your job is to provide for and protect your children. Contact our office now for an appointment and together, we’ll get your children protected.