A common estate-planning problem arises when parents with young children die or become incapacitated. Usually when one parent dies, the second parent assumes custody, but if the second parent is also not available the issue is who has the right to and who will raise the minor children.
The best solution to avoid this issue is to plan ahead by naming a guardian through a will. A guardian should be someone who is willing to raise the minor children in the event something happens to the parents. To qualify as a guardian in Florida, the person must be at least 18 years old and of sound mind.
In the will, a personal guardian should be named for each of the parent’s children. It is also a good idea to name an alternative guardian in the event the first guardian is unable to serve. Besides the age requirement, a guardian must be a Florida resident unless a close blood relative or spouse of one. A testator, or one who executes a will, may also name co-guardians if they prefer that two people care for the child. This could allow another couple to raise the children, and would give each guardian the ability to make important decisions for the child.
The parents can select one guardian to raise the child, and another to take care of their property.
Selecting a guardian is not a process that should be taken lightly and there are many factors we urge clients to consider before naming a guardian in the will. The most important factor is whether the prospective guardian has a genuine desire to care for the children. A parent should have an honest discussion with the guardian to determine if this person is fully prepared to take on this big responsibility.
Even if the guardian is 100 percent on board with the idea, we urge clients to weigh other factors as well, such as if the prospective guardian is physically capable of raising the children. A parent might also want to consider how much time the guardian has to be a parent, and whether the guardian would be able to afford raising the children. The latter factor may also depend on if the parent can leave the guardian any assets to help. A parent might also wish to factor whether the guardian already has children, and if their children would need to move out of state.
The majority of the time, parents will wish for their children to stay together with one guardian. However, it is possible for different guardians to be appointed for different children. This might be a good idea if children have become attached to different adults within the extended family. For instance, the older child may like spending the majority of her time with the grandmother, while the other child may prefer an uncle. This situation arises most commonly when a parent has children from different marriages.
If one parent dies, the default rule in most jurisdictions is that the other parent will retain custody of the child. This will happen unless the other parent has legally abandoned the child or the parent is deemed unfit by a judge. It is often difficult to prove a parent is unfit, however, courts may rule a parent to be unfit if they have a serious problem such as habitual drug or alcohol abuse, a mental illness, or a history of child abuse.
For more information on how to name a guardian through a will, contact Florida estate-planning attorney David Goldman at 904-685-1200.