Protecting Your Most Valuable Asset: Your Children

After traveling around the world and meeting people from all walks of life, I noticed there is a prominent common denominator for all those with children – as parents we do almost everything we can for our kids. Picture this…

Every morning you wake up at the crack of dawn, get breakfast going, and wake up the little munchkins to get ready for school. Your daily activities include some careful planning to keep them safe from harm. Unfortunately, even with all the proper precautions in place, accidents do happen and not just to children. As you jump on the car with a fresh cafecito, your mind turns to the day’s schedule. The kids are off to school and have their practice in the afternoon. You’ll finish working on the first big project of the New Year . . . WHAM . . . Crash . . . You forget whatever it was you were thinking about. The next thing you know is that you’re seeing your spouse from a hospital bed. What happened?

If it’s you in that accident, do you have a plan for what happens to your children? You certainly do not take your parenting duties lightly, but what happens if you become incapacitated and can no longer properly care for your children or you pass away? Serious questions like this often get put on the back burner. Many times, we just say we’re too busy, but it’s probably more that we do not want to tackle the issue. These truths may be hard to face, but with the start of the New Year, let’s all make a resolution right now to create a plan for the future.

Among other goals and resolutions in 2018 for better health and self-improvements, we decided to take it a step further. Would you believe that only 1/100%, yes .0001, of families in Broward County have filed a Pre-Need Guardian Declaration1. At Yolofsky Law, we are on a mission to increase the number of Pre-Need Guardian Declarations made in South Florida this year and we want you to join us! We want to take this very important step to help more people become a Hero to their Family and this includes you!

What is a Pre-Need Guardian Declaration?

The Pre-need Guardian Declaration tells the public, through the court system, who you want to take care of your children if you are incapacitated or pass away. The Declaration is a written document where both parents or the surviving parent can name a guardian for their minor children. The declaration is then filed with the clerk of courts. If you have a catastrophic event the appointed person then becomes the guardian for your children.

We speak to many people who say they have the guardianship covered in their will. Truly, it’s good to know you’ve thought through the concept. But, as we recently spoke about, your will only comes into play if you’re deceased. By not completing a Declaration independent of your will, you are leaving two possibilities wide open.

  • If you become incapacitated; or
  • If you become incommunicado as a result of some traumatic event (e.g. hurricane) or that you’re on a vacation somewhere remote.

If your will is locked up in a safety deposit box (not recommended) then how will anyone know who you have appointed as guardian for your minor children?

The other common response we receive is that parents have an “understanding” that a sibling, relative, or friend will take the kids. Do they know that? Is it in writing? Do you have a plan for how your sister will pay for your kids’ care along with existing costs for her family? As planners, we are always helping you to answer the challenging questions. Speaking with your best friend, sibling, or parents about them becoming the guardian is the start to having this very important task covered. But, how will the courts know you named them as guardian without a Declaration? Moreover, will the State permit your kids to go into someone else’s care without the proper documentation?

 How does guardianship work?

Absent a Declaration, a court proceeding is necessary to appoint a guardian. Some people see guardianship as a simple process. Indeed, the court will appoint next of kin, so why bother with naming a guardian? What if the next of kin is someone in your family that you may not necessarily believe is ready to take care of your children? What if there is no next of kin?

The question of who should become a legal guardian becomes more important in specific types of families. For example, in a blended family, one parent might not want their natural children to be raised by the other parent’s (and former spouse) new spouse (a.k.a. the step-parent) if both natural parents were deceased and the children were still minors. Indeed, even the fictional parents in the popular television sitcom Modern Family struggled with this issue in a recent episode. While Jay and his new and much younger wife Gloria agonized and argued about who they should name as a legal guardian for their children, their children were left at risk that if something happened to Jay and Gloria before they decided and properly named guardians in a legal document, a judge would make the decision for them. Not ideal, under any circumstances.

Another scenario might be if a child has special needs, those parents should absolutely be naming guardians because of the specific care and nurturing that the special needs child requires. Why leave things to chance?

Choosing the right guardian

When naming a legal guardian for your minor children, there are many factors to consider, such as whether the guardian has similar values to yours or can provide a welcoming home environment. But the toughest decisions are often the most important. Consider the outcome if you died without having legal protections for your children in place. Your children could be subject to conflict between relatives or they could be raised by someone you would never want, or in a way you wouldn’t want.  They could even temporarily be taken into the care of strangers.

Florida law states that upon the death of the first parent, the surviving parent remains the minor children’s natural guardian2. The surviving parent will then possess, without the involvement of the court, all powers, rights and obligations of a guardian of the minor. The death of both parents presents more complicated circumstances if no guardian has been declared previous to the passing of the parents. As discussed above, specific families may need more than what the default provisions are under FL law. You have the responsibility to plan and prepare for your children’s future. You plan their daily activities and map out their education for the years to come. You must also plan for their future when you can’t be there.

As a parent, you can plan for the ongoing care and custody of your minor children by executing the Declaration. Under Florida Law, the best practice is to execute a declaration establishing who shall serve as guardian upon your death or incapacitation.

We have done the research. Although you may think you have a plan and you live in Broward County, Florida, we know that the state is not aware of your plan3. Our mission is to help you become a hero to your family so we are ready to assist you in filing the pre-need guardianship declaration form. Below are the instructions so that you too can be on the path to being a hero to your family.

P.S. One more thing – our conviction is so strong on this issue that we will never charge a fee to assist a family with naming guardians for their children.

Instructions for filing:

When filing a Pre-Need Guardian Declaration, the Declaration must include4:

  • Your full legal name
  • Designated pre-need guardian’s full legal name (must be specifically stated as designated pre-need guardian)
  • Minor’s full legal name as it appears on their birth certificate
  • Minor’s date of birth
  • Minor’s social security number

Lastly, you must sign the declaration in the presence of at least two attesting witnesses5.

Florida Law states that Declarations for minors are required to be filed with the clerk of courts6. The clerk will produce the declaration when a petition for incapacity of the last surviving parent is filed or upon the death of the last surviving parent. Once all minor children named in the declaration have reached the age of majority of eighteen, the declaration will no longer be valid, thus it is no longer required to be maintained by the clerk.

 

1 Declaration of Pre-Need Guardianship in Broward County from 09/22/16 to 10/16/17.

2 Fla. Stat. § 744.301(1) (2017).

3 We’re waiting on the report from other counties in Florida, and we (unfortunately) expect the Declaration numbers to be similar.

4 Fla. Stat. § 744.3046(1), (2) (2017).

5 Fla. Stat. § 744.3045(2), 744.3046(2) (2017).

6 Fla. Stat. § 744.3046(2) (2017).

 

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