No parent likes to think about dying and leaving their children behind, especially when they're small and still minors. However, part of being a responsible parent is ensuring that your children are protected in any eventuality. When you're planning your will, make sure to indicate instructions for guardianship of your minor children or adults in need of care.

Florida probate laws can be complex, and your wishes for guardianship of your children and dependents must be clearly stated so that they can be carried out during the estate settlement process. Naming a guardian should be a careful consideration, and you should choose someone who will best protect your children's interests.

Who Needs a Guardian in Florida?

It's important to note that Florida allows both voluntary and involuntary guardianships. Voluntary guardianships refer to situations in which a person petitions a court themselves to have a guardian appointed to them, while an involuntary guardianship refers to a situation in which a court appoints a guardian for someone with limited decision-making capacities. Minor children are placed in involuntary guardianships until they turn 18.

The Florida probate court defines a guardian as a "surrogate decision-maker" who can make financial and personal decisions for a minor or an adult with mental or physical disabilities. Once the court approves the position of the guardian, then the person under the care of the guardian is considered a ward. The estate executor may advise the court about the assignment of a particular individual as a guardian to a minor child.

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The law in Florida requires the court to appoint a guardian for minors whose parents are incapacitated or deceased. If the child receives an inheritance, proceeds from a lawsuit, or benefits from an insurance policy, then the courts can appoint a guardian to protect the child or children's financial interests.

Adults are assigned a guardian if the court finds that their ability to make decisions is impaired. Therefore that person cannot advocate for themselves or make financial or personal decisions in their best interest. An involuntary guardianship for an adult is the most restrictive form of oversight. If less restrictive options, such as a trust or a durable power of attorney aren't effective, the court may decide that an individual needs a guardian.

However, Florida law is written to ensure that the least restrictive form of guardianship is placed on an individual.

When Does a Probate Court Designate a Guardian For Minors?

If no will has been left behind, then a Florida court will proceed to probate the estate according to its own rules. This includes appointing a guardian for minors, and the court will choose whoever a judge thinks is most capable of representing a minor’s interests. If you don’t have a will, your own wishes will not be brought into consideration.

Under Florida law, a guardian is required whenever a minor receives a judgment or net settlement in excess of $15,000. In addition, if a minor receives funds stemming from a wrongful death case, then Florida law requires a guardian. Other reasons that Florida may require a guardian for a minor is if they receive more than $15,000 in proceeds from a life insurance policy or annuity, are the beneficiary of a trust or estate, or receive a benefit plan.

A guardian may also be appointed if the minor's parents, either biological or adopted, are unable or unavailable to serve as a custodian for the child. This generally happens when the minor's parent passes away, is incarcerated, or is incapacitated.

How Can an Estate Plan Ensure That Guardianship Designations are Not Left Up To the Probate Court?

Having a carefully thought-out estate plan in place will help ensure that your wishes for guardianship of your dependents are followed and not left up to the courts. An agreement with the person or persons you've designated as a guardian for your children can ensure that your children go to a trusted family member, for example, rather than foster care or the next-best relative.

If you have questions about establishing guardianship for a minor child or an incapacitated adult for whom you have responsibility, or planning your estate in general, we can help.