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Estate planning is an essential task for every adult to ensure long-term protection for their personal assets and to provide logistical guidance in settling their estate in the event of their passing. However, if you are a parent or plan to have children sometime in the future, estate planning is all the more critical.

When considering the physical and financial wellbeing of your loved ones, arranging for proper guardianship in the event of your incapacitation or untimely death should be a top priority. Consult with an experienced attorney to develop an estate plan that not only provides support for your beneficiaries but also guarantees their safety and comfort. The Lopez Law Group is experienced in all aspects of estate planning, and can help ensure there is guardianship in place to protect your loved ones.

What Is Guardianship?

Guardianship refers to the legal process by which an individual is appointed as a caretaker for those unable to care for themselves due to incapacity, infancy, or disability. The courts most often issue this assignment if a minor’s parents have both perished or are otherwise unfit for providing proper care for the child. Additionally, a guardian may be appointed for an elderly individual or adult with disabilities. In the state of Florida, the laws permit both involuntary and voluntary guardianship assignments.

Several forms of guardianship may be enacted to benefit an individual’s safety and wellbeing:

Guardianship Of The Person

This guardian is responsible for the individual’s most basic physical and mental needs. From providing housing, nourishment, clothing, and health care, to making critical decisions regarding their health and educational needs, this guardian acts as an everyday support system for the individual.

Additionally, if caring for an elderly or incapacitated individual, a guardian is expected to monitor medical treatments, arrange professional services, and make end-of-life preparations on their behalf. If the individual is a minor, guardianship continues until they turn 18, they are granted emancipation, or the courts determine that a legal guardian is no longer necessary.

Guardianship Of The Estate

A guardian of the estate oversees the management and maintenance of an individual’s financial and personal assets. If a minor were to inherit an extensive estate, for example, the courts may appoint a financial guardian to protect and manage the minor’s assets until they turn 18. Concerning an elderly individual or incapacitated adult, a guardian of the estate would provide protection for personal assets as well as manage any distribution of income according to needs. In both instances, the estate guardian is responsible for creating an inventory of assets and values and reporting these findings to the court.

Guardianship Ad Litem

Should a minor need to appear in court, a guardian ad litem may be appointed to serve as a legal representation of the minor’s best interests. This may occur in divorce cases or cases in which the minor has been neglected or abused.

How Does Guardianship Relate To My Estate Plan?

During the estate planning process, a skilled attorney will inquire about your guardianship preferences. Whether you currently have children or are planning to have children in the future, this is an essential aspect of preparing for a stable and well-supported life. If you were to sustain a severe injury that makes it challenging to care for yourself, a guardian might be appointed to support the continuation of stable living. If you and your spouse were to both become incapacitated or otherwise incapable of caring for yourself or your children, a guardian might be appointed to ensure the safety and wellbeing of your family.

What Happens If I Do Not Appoint A Guardian?

If you fail to create an estate plan or do not otherwise list potential guardians for your children, the courts may appoint who they feel is best suited for the responsibility. If you are divorced, your former spouse will likely be granted full custody. However, it is not a guarantee that family members will be named as a guardian. If there are any concerns regarding the reliability of a family member, or if none of your family members are in a position to assume responsibility, the courts may place your children in foster care until a more suitable guardian can be assigned.

Considerations For Selecting A Guardian For Your Estate Plan

Similarly to naming a power of attorney or executor to your will, selecting a guardian for your estate plan should be a thoughtful decision. This individual would be responsible for your children until they reach adulthood or are otherwise deemed by the courts mature enough to care for themselves. Remember that it is not necessary to select a family member; you may choose a close family friend if that better suits your needs. No matter what, select the person who will most adhere to your wishes and respect your parenting preferences even after you are gone.

When discussing guardianship candidates with your attorney, consider any specific parameters you might set for the guardian.  You might include any personal details about your children if you feel that may help the guardian in the transition period.

If you have a preference for which school they attend in the future or which religion they are raised within, this would be an excellent time to provide those details. While you cannot guarantee that every preference will be successful, clarifying your wishes in writing and select a guardian you trust will make it more likely.

Mistakes To Avoid

Regardless of how many close friends or family members you have, it can often be difficult to name a future guardian for various reasons. It is essential to keep in mind that you should not select a guardian because you know that’s what they would want. Your estate plan and your guardian selection for your children are not about fulfilling someone else’s desires; it is strictly about you, your parenting style, and the future you want for your kids.

There are several different mistakes to avoid when approaching this decision:

  • Only naming one potential guardian: You should consider multiple individuals to assume the guardianship position and rank them according to preference. As uncomfortable as this may feel, it is critical to know that your children are supported. Although you may name a guardian, they may not be able to or interested in taking on the responsibility and will therefore hand off the opportunity to a backup.
  • Not being specific about parenting styles: Include any steadfast parenting preferences in your estate plan. While you can’t guarantee all of your wishes will be
  • Not being clear about who you don’t want acting as guardian: If there are individuals who you specifically do not want assuming guardianship responsibility, including a family member or former partner, you should indicate as such in your estate plan. Put in writing how involved you’d like your former spouse to be should your child be assigned a guardian.

Evaluating Your Candidates

Selecting a candidate that can carry out your parenting preferences and also provide a healthy and supportive lifestyle for your children is essential. You may approach several critical considerations in making your decision of naming a primary, secondary, or tertiary guardian assignment:

Age or Life Stage

Consider the age and life stage of potential individuals and whether or not their life experiences may make them suitable guardians. If you are establishing a plan for guardianship while your children are either not yet born or are still young, you may be inclined to name a parent or an aunt or uncle.

While this might not present immediate challenges, if you fail to keep your estate plan updated or forget to revise your assigned guardians, it is possible that these individuals may be further advanced in life or even deceased by the time your child needs a guardian. Be sure to update your estate plan throughout the sequential years to ensure your choice of guardians will be available if the time comes.

Location

Especially if you prefer your children to attend a specific school or live in a particular area, consider the location of your choices for a guardian. If necessary, it may be wise to have a conversation with an individual to determine whether they would be willing to relocate should the need arise.

Living Situation

Consider the kind of living environment in which you prefer your children be raised. Although a guardian may be well-suited to care for your loved ones, if their living arrangement does not accommodate children or would not be a comfortable environment for your children, you may want to evaluate other options.

Parenting Experience

Bear in mind whether parenting experience is crucial to you and your spouse should your children end up with someone who has not ever had kids of their own. If this an essential quality, it may help narrow down your selection of candidates.

Religious Practice

If your family identifies with a certain religious practice, consider whether this is an important environment in which you want your children to continue learning. If incorporating daily religious values is essential to you and your family, consider listing potential guardians with that same background and belief system.

Employment and Financial Stability

Although an individual may be well-suited to act as a guardian, consider their financial stability and employment. If someone does not practice responsible financial management, it may not be wise to list them as a potential candidate. Regardless of whether your estate will support your children into adulthood, those funds may be less reliable with the wrong guardian. Additionally, if financial responsibility is a quality you find essential to teach your kids, ensure they are with a guardian that can model that behavior and value.

What Else Should I Include With My Guardianship Preferences?

If your selection of guardians omits a close family member or friend, it may be meaningful to include a letter of intent with your estate plan. For example, suppose you have a parent that is an ideal candidate but suffers from medical issues that may threaten their ability to be present for the duration of your children’s lives. In that case, you may consider writing a letter addressed to that individual explaining your decision. The choice may still hurt their feelings, but your decision will be justified, and the individual will not be left wondering why they weren’t on your list.

Ensuring The Safety And Wellbeing Of Your Children

Although we hope never to need a guardian to be assigned to care for our loved ones, knowing that the right person will become a support system can grant us peace of mind. During your estate planning process, spend valuable time when considering your list of guardians.

This selection will not be the easiest choice to make, but the Lopez Law Group can help guide you through the decision-making process. Ensuring your children’s safety and wellbeing starts by preparing for circumstances you hope will never become a reality. Contact our office today to schedule a consultation.

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