By Steven J. Gibbs, Esq.
Most people want to make their own choices. We all have the right to think for ourselves, choose our own paths, make our own mistakes. Unfortunately, though, sometimes situations arise in which a person is no longer capable of making decisions about important matters like healthcare or financial affairs.
Incapacity of this nature typically arises from a severe medical condition or age-related mental impairment. Or, in the case of children, the law assumes that minors are not able to make certain decisions for themselves until they reach adulthood.
Florida Guardian as a Surrogate Decision Maker
Individuals who are not able or legally permitted to make these important decisions must rely upon guardians to act in their best interests. In the legal sense of the term, “Florida courts define guardian” as “a surrogate decision-maker appointed by the court to make either personal and/or financial decisions for a minor or for an adult with mental or physical disabilities.” The person on behalf of whom a guardian makes decisions is known as a “ward.” A parent acting as guardian of his or her own child, referred to as “natural guardianship,” is the most common form and the only form which does not require court appointment or oversight.
Within the Florida estate-planning context, appointment of a prospective guardian for your minor children is one of the most monumental decisions you can make. By naming a guardian in a Florida last will and testament, you help to ensure that, in the event of tragedy, your child will be cared for by a trusted adult capable of providing emotional and financial support. And you save your estate and loved ones the expense and burden of complicated guardianship proceedings, which can be traumatic for a young child grieving a lost parent. Court appointment is still required, but the presence of a willing nominee helps significantly to expedite the process.
Testamentary Appointment of Legal Guardians for Minor Children in Florida
The law in Florida, as in other states, affords great respect to the rights of parents with regard to the care of minor children. If one parent dies and the other is still alive, guardianship automatically vests with the surviving parent unless he or she is unfit or incapable of caring for the child. If neither parent is still living, or if a surviving parent is incapable or unwilling to assume the responsibility, Florida law grants considerable deference to the wishes of a decedent parent, if expressed in a will or otherwise ascertainable with reasonable certainty.
Though Florida courts strongly favor a parent’s choice, it is not absolutely binding, and a prospective guardian must satisfy certain criteria to be eligible for appointment by a Florida court. The proposed guardian must be an adult and must either reside in Florida or, if a nonresident, be a close relative of the child – or the spouse of a close relative. A guardian must also be generally capable of assuming the responsibility and willing to do so. Appointment of an alternate guardian is a good idea just in case the first choice is no longer capable.
An appointed guardian cannot have been convicted of certain crimes or have a history of abuse, abandonment, or neglect of a child. Judges can also deny appointment of a proposed guardian who is “otherwise unsuitable,” allowing some discretion to deny appointment of a designee who is not technically disqualified but who has some other fault which makes the judge wary of entrusting the child to his or her care. Ultimately,
in all proceedings involving child custody, a Florida court’s utmost consideration is the child’s best interests, and so proposed guardians may also be denied appointment based on a conflict of interest – such as a business, financial, or healthcare-provider relationship with the child.
Florida law allows for some flexibility by permitting both joint guardians and split guardianship duties. Joint guardians might be a grandmother and grandfather, aunt and uncle, or another pair of responsible adults capable of working together and assisting one another as guardians. Guardianship duties include two broad categories: guardian of the person and guardian of the estate. A guardian of the person makes more personal decisions like the child’s living arrangements, education, and healthcare. A guardian of the estate handles matters relating to the child’s finances and property. A child’s guardians of the estate and of the person can – and often are – the same person or people, but they do not have to be, if splitting the duties is in the child’s best interests. The role of guardian of the estate relates also to managing financial accounts set up for minor children in Florida.
When selecting a potential guardian for appointment in a will, it’s wise to speak with him or her first. You will want to confirm that the selection meets all statutory qualifications and is able and willing to assume the tremendous responsibility. It’s also a good idea to confirm the other parent’s agreement. A situation in which two deceased parents have left conflicting instructions as to a surviving child’s care can lead to contested appointment proceedings, which are expensive and can be emotionally difficult for children.
The appointment of a minor child’s guardian, while undeniably of paramount importance, is not the only guardianship that is relevant to estate planning. In some cases, the appointment of a preneed guardian – for your child, yourself, or both – can be just as important.
Preneed Guardianships in Florida
Where the testamentary appointments discussed above appoint a guardian to care for a minor child in the event of the testator’s death, a preneed guardianship appoints a guardian in the event of incapacity. The idea is that a will does not become effective until death, so an appointment made in a will does not address a situation in which you become incapable of making decisions for your child or yourself but are still living. The role of the guardian is basically the same; it’s the situation in which the guardianship becomes necessary that warrants the distinction.
Preneed guardianship declarations are often created as part of an estate plan and/or in conjunction with other Florida advance directives such as a living will or designation of healthcare surrogate in Florida. The declaration allows for expedited appointment of a guardian to act on behalf of you or your minor child in the event of your incapacity due to, for instance, a severe medical condition like Alzheimer’s or a traumatic brain injury. The document can name a single guardian in the event of incapacity, with or without substitutes or alternates, or expressly identify individuals who the declarant does not want to be appointed as guardian.
Florida law favors the least restrictive guardianship necessary. So, if you have created declarations appointing a preneed guardian and a healthcare surrogate – and a judge thinks that only the healthcare surrogate is necessary – the court will likely hold off on appointing the more comprehensive guardianship. Likewise, Florida judges have the power to appoint guardians with authority limited to specific matters like financial and business decisions or more comprehensive “plenary guardians,” who are granted “all delegable legal rights.”
In Florida, a declaration of preneed guardian for the declarant or the declarant’s minor child can only be made by an adult who is mentally competent at the time of the declaration. The declaration must clearly identify both the declarant and the proposed guardian and must be signed by the declarant in the presence of two witnesses. If the declaration is for a guardian for a minor child, the document must also identify the child by full name, date of birth, SSN, and must define the relationships between the declarant, the minor child, and the proposed guardian.
Once executed, a declaration is filed with the court clerk so that it is readily available in the event a petition for incapacity is ever filed. Then, if the declarant is found to be incapacitated, the guardian can begin the role immediately, which saves much of the time and expense of going through the regular process of applying for appointment of a guardian. The guardian just has to file a petition for confirmation of the appointment within twenty days.
The existence of the declaration creates a presumption that the proposed guardian is fit for the role and the right person for the job. Of course, the presumption can be rebutted. So, if, for example, another party contests the appointment based on evidence of dishonesty or improper motives, the court does not have to grant confirmation. But, if the appointment is not contested and the proposed guardian is of generally good character, the confirmation will usually be entered with little delay.
A declaration of preneed guardian remains effective until it is revoked. If the declaration is made for a minor child, it expires upon the child’s reaching the age of majority.
Nobody likes to think about their own death or incapacity, but proactively designating a guardian for minor children (or yourself) can be a tremendously important decision. Not only does it avoid confusion, expense, and delay, it also ensures that a guardian appointed to make decisions for you or your child is someone you trust and who you know is capable of making good decisions. An experienced estate-planning attorney in Florida with knowledge of Florida’s guardianship laws can help create a legal document guaranteeing that, if a guardian ever becomes necessary, you have someone you believe to be honest and capable designated for the role.
Steven J. Gibbs is a trust and estate planning attorney who provides complete Estate Planning, Trust Planning, Business Planning, Asset Protection, Elder and Medicaid Planning, Real Estate, Probate and Trust Administration legal services in Florida and California. Steve’s main offices are located in Fort Myers, Florida, and San Juan Capistrano, California. Estate planning legal services are provided statewide in these locations.
The Gibbs Law Office was founded by Steven Gibbs in January 2009 upon the commitment to provide client-centered legal services.
Steven Gibbs founded the Gibbs Law Office in January 2009, committed to providing client-centered legal services.
Steve as he would rather be called, is not your typical attorney. If you appreciate the staunch egotistical mannerism of most firms, you will be delighted with Steve’s unpretentious approach to educating and then assisting his client. Instead of giving you his complacent and lofty ideas, he would rather pursue your expectations with professional conversation about resolving your concerns under the Law. It’s your life and it’s his job to make your legal expectations come true while using years of his guidance and knowledge.
Steve was admitted to the Minnesota Bar in 1999, the Florida Bar in 2007 and was admitted to the California State Bar in 2014.
Along his career path, he was an associate attorney for an insurance defense law firm; an in-house real estate negotiator for Target Corporation; and corporate counsel for Civix, LLC and Vice President for North American Properties where he was responsible for various real estate transactions, including legal issues and negotiating unresolved business issues. Prior to opening Gibbs Law Office, PLLC, he was an associate with the firm of Roberts & Engvalson, P.A. where he gained his knowledge of trusts, estate planing and Wills. He opened his own firm in 2008 and now focuses on laws that will enrich the needs of his clients throughout their lives and those of their children. The firm has developed a practice dealing only with Trusts and Estate Planning, Wills, Medicaid Planning, Elder Law, Real Estate, Business Law and Probate.
Quoting from Steve “I decided to practice in areas that families will need as they progress down life’s path. To help them with a solid foundation that will carry them throughout there lives is a rewarding experience for me and my staff.”
Gibbs Law Office, PLLC
8870 Daniels Parkway, Suite 101
Fort Myers, Florida 33912