Planning for Your Minor Child
Our Florida estate planning lawyers know that parents of minor children have unique estate planning concerns. Parents should name a guardian for their child, and a health care surrogate for their child.
Naming a Guardian for Your Child
Parents with minor children should name a guardian for the child in their Will, regardless of the parents' financial resources. Both a "Guardian of the Person" and a "Guardian of the Property" should be named.
The person you name as Guardian of the Person will care for the child. The Guardian of the Property will manage assets that the parents have left to the child that are not in trust, or that the child may receive from other sources. Different people, or the same person, may be named for each job.
If the parents pass away, the Probate Court will appoint a guardian for the child. The Probate Court bases its decision on the best interest of the child, but generally speaking, the parents' proposed guardians are deemed to be the best choice unless they are grossly unfit or unable to serve.
For most parents, leaving money in a Trust for a minor child is the best option. First, the parents, not the court, name the trustee. Another advantage is that money in a Trust need not be distributed in a lump sum to the child at age 18, a point when many do not have the maturity to prudently handle funds. You may hold back the money for a longer time and set conditions for its distribution in the Trust provisions.
Note that even if parents have created a Trust and named a trustee, a Guardian of the Property will still be needed to manage any non-trust funds the child may have - for example, a settlement from a wrongful death lawsuit that has arisen from the parents' deaths.
The advantages of designating a Guardian for your minor child:
- Protection for your child.
- Peace of mind for you
- You get to designate the guardian you consider the best choice. The person the Probate Court might otherwise appoint may not be your first choice.
- You eliminate or minimize family conflicts that might occur over who will care for your child and handle your child's funds. For example, there are many cases in which maternal and paternal grandparents have sued for guardianship of a grandchild when both parents have passed away.
Issues to think about when choosing a Guardian for your minor child:
- Is the prospective Guardian willing to serve? Make sure you discuss this with the proposed guardian. It is obviously an enormous undertaking.
- Does the prospective Guardian have the ability to serve? Does he/she have the time and parenting skills to effectively care for your child?
- Does the prospective Guardian share your religious and moral views?
- The age of the prospective guardian is also an issue. Many people automatically assume that grandparents are the best choice, but the age of the child and the age of the grandparents must obviously be factored into the equation, too.
- What about location? Many parents prefer to keep their child in their community if at all possible.
It is always wise to appoint a backup guardian, in the event your original choice cannot or will not serve.
Naming a Health Care Surrogate Your Child
Clients with young children will want to designate someone to be in charge of their child's health care decisions should the parent be unavailable to do so, whether due to incapacity, travel, working long hours, etc. Under Florida Statute 765.2035, a parent may create a written Designation of a Health Care Surrogate for a Minor, which empowers someone to make the child's health care decisions if the parent(s) is not available.