FLORIDA LAW: WHO TAKES CARE OF MY CHILDREN IF I DIE?
Not surprisingly a common concern among our Clients is the care and wellbeing of their minor children in the event of incapacity or death. If you fail to plan accordingly the care of your minor children may be at the mercy of the determination of the Court system which for many folks can have serious unintended consequences. The good news is that Florida Law allows parents to select pre-need guardians both in a testamentary instrument and through a separate document called a Declaration of Appointment of Guardian.
Florida State law determines the custodial rights to minor children. If a child is born out of wedlock and there is no established father then the mother has sole custody. Custodial rights between established parents are determined in the family Courts if there is a dispute. Absent any dispute both natural parents have the right and obligation of custody. In the event of the death of one parent, the surviving parent will have sole custody of the child. Fla. Stat. 744.301. In the event that both parents die the Court will determine an appropriate guardian for your child. Hopefully this will be the family member that you intended and the person that is best qualified. What we often see where no designation has been made is a conflict among surviving family members as to who is best suited to take care of the child. These conflicts can cost serious money in litigation fees and cause unnecessary conflict, typically between the family of each deceased parent. Basic planning tools can create a clear direction for your surviving family members and also expedite the determination of guardianship by the Court. There are two easy basic ways to set forth the intended guardian of your minor child in the event that both parents die during a time when the child or children are minors:
- A FLORIDA PRE-NEED DESIGNATION
The first and strongest tool to select a guardian is a Florida Pre-Need Designation of Minor Guardian. The basic idea is that you create a declaration as to who would be your preference to take care of your minor child in the event of your death.
The authority to make such a determination comes from Fla. Stat. 744.3046 which provides as follows:
- Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent’s minor child by making a written declaration that names such guardian to serve if the minor’s last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.
- The written declaration must reasonably identify the declarant or declarants and the designated preneed guardian and must be signed by the declarant or declarants in the presence of at least two attesting witnesses present at the same time. The written declaration must also provide the following information for each minor child named in such declaration: the full name as it appears on the birth certificate or as ordered by a court, date of birth, and social security number, if any.
- The declarant must file the declaration with the clerk of the court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration.
- Production of the declaration in a proceeding to determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is found to be unqualified to serve as guardian.
- The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent.
- If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that the alternate preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
- Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with 744.347 and shall file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in s. 744.345.
- The clerk shall maintain all declarations filed pursuant to this section until: A petition for incapacity of the last surviving parent is filed or petition for the appointment of a guardian upon the death of the last surviving parent is filed as provided in subsection (3); or (b) All minor children named in the declaration have reached the age of majority. The clerk may dispose of such written declaration in accordance with law.
Florida law allows for a preneed determination of guardianship over a minor child. That determination is not definitive if the nominated Guardian appears to be manifestly unqualified as determined by the Court. However, if the designated person has no criminal record, no serious negative financial history and appears capable of serving as guardian the pre-need designation will be instrumental and must be given weight by the presiding judge. Pursuant to Fla. Stat. 744.3046 it creates a rebuttable presumption, so the nominated person will likely be the designated guardian of your minor child unless there is some evidence why he or she cannot serve the best interest of your child. Like many estate planning documents under Florida law it is useful to name an alternative or second choice just in case.
The preneed declaration is filed with the Court and will be maintained by your Clerk of Court in the Florida County in which you reside so that it is on file for a guardianship proceeding if necessary.
- DESIGNATION OF A GUARDIAN FOR YOUR MINOR CHILDREN IN A LAST WILL AND TESTAMENT
A second way to incorporate your desires as to the care of your minor children is to put a provision in your Last Will and Testament regarding care and nominating a guardian. Like a preneed designation outlined above, the choice by the parents is highly persuasive but not definitive. Nonetheless the express desires of the deceased parent as expressed through the Last Will and Testament carries significant weight towards the ultimate determination of guardianship. Absent substantial competent evidence that the designated person should not be allowed to be guardian, the Court will uphold a testator’s intent as to the selected guardian. Fla. Stat. 744.312(3)(c) specifically provides that the Court shall consider any person designated as guardian in any will in which the ward is a beneficiary. So the Court must consider and typically gives substantial deference to a deceased parent in choosing who is best suited to look after their minor children. Unlike a preneed designation, this document does not need to be filed with the Clerk of Court.
If you are a Florida resident and have not yet implemented the care of your minor children into your Estate Plan, give us a call for a no obligation free consultation to discuss what we can do for you and your family.