Children need their parents. Not only do the child’s parents care for them, but they also make basic decisions for the child until they reach the age of maturity.
But what happens if the parents pass away? Then the law appoints a guardian for the child to make decisions that the child is legally incapable of making, like medical or financial decisions.
In this article, we will make sure that you understand preneed guardianship, so you can consider designating one for your children. We’ll also discuss preneed guardianship for others like yourself or an elderly parent.
If, after reading this article, you have additional questions about the Florida preneed guardianship process, then we welcome you to contact the Palm Beach County lawyers at Doane & Doane, PA. Call today at 561-656-0200 or fill out our online contact form.
What is a Guardian?
A guardian is a person the court appoints to act on behalf of an individual’s person or property or both. When under the care of a guardian, the incapacitated individual is called the ward. A preneed guardian is appointed over a ward who is a child (a minor), an elderly parent, or even the person themself.
Preneed Guardians for Children
The parents, or a single parent – whether natural or adoptive – may designate a preneed guardian for their child. They file a declaration of preneed guardian form with the court. This declaration names the individual who will become the child’s guardian if the child’s last surviving parent dies or becomes incapacitated. The declaration of preneed guardian form may also designate an alternate to the guardian. This is helpful if the first nominated preneed guardian refuses to serve, quits the appointment, dies, or becomes incapacitated after the death of the child’s last surviving parent.
The declaration of preneed guardian form must identify the declarants (the parents), or declarant (single parent), and the child. The declarants or declarant must sign the declaration in the presence of two attesting witnesses at the same time.
The declaration of preneed guardian form must also provide the following information for the child: full name as documented on the child’s birth certificate or as ordered by a court, date of birth, and if it has been obtained, the minor’s social security number.
The declarants or declarant file the declaration with the court clerk. Upon the death of the last surviving parent, a petition is filed to appoint a guardian. In that case, the clerk will produce the declaration.
Within 20 days after assuming a guardian’s duties, the preneed guardian must petition the court for confirmation of the appointment.
Preneed Guardians for Others
Preneed guardians aren’t just for children. They are for anyone who could become incapacitated. For example, it could be your elderly mother or even you yourself. The process for designating a preneed guardian is similar to that for a child’s designation.
Qualifications of the Preneed Guardian
Not everyone is qualified to become formally appointed as a guardian. If the designated guardian (the one listed on the declaration of preneed guardian form) is a resident of Florida and is 18, then they are generally qualified, subject to the limitations discussed below.
A non-resident may also be qualified if they are related to the ward by blood, a close relative to them, or related to a close relative by blood.
An individual is not qualified to be the preneed guardian, however, if they:
1. Are a judge, unless the judge is related by blood or in a close relationship with the ward and serves without compensation;
2. Have been convicted of a felony; or, in the case of a minor ward, they have committed abuse, abandonment, or neglect against another child;
3. Are other persons such as a creditor or similar; or
4. Are in any other position where a conflict of interest may be present.
Duties of the Preneed Guardian
The preneed guardian acts in good faith and may not act against the ward’s best interests. They have both personal and financial duties with respect to the ward.
A guardian having authority over the ward’s person:
1. Considers the expressed desires of the ward;
2. Allows them to maintain contact with family and friends, unless such contact may be harmful;
3. Allows the ward as much physical liberty as possible, without it leading to harm;
4. Makes provision for the medical and personal care services for the ward; and
5. Makes appropriate healthcare decisions for them.
A guardian with authority over the ward’s property:
1. Protects and preserves the property, and invests it prudently; and
2. Delivers the property of the ward to whoever is lawfully entitled to it at the termination of the guardianship.
Termination or Removal of the Preneed Guardian
The guardianship generally ends when a minor ward is no longer a minor or a ward is otherwise no longer incapacitated. Alternatively, the guardian may be removed on several grounds. These include:
1. Failure to discharge their duties;
2. Abuse of their powers;
3. Incapacity, illness, or substance abuse;
4. Conviction of a felony;
5. Development of a conflict of interest;
6. Other instances where removal is in the best interest of the ward.
Work with Estate Planning Lawyers in Palm Beach
The designation of a preneed guardian is an option that should be seriously considered when planning for the future. You want to make sure your children or others are cared for by a responsible person if something were to happen to you and your spouse.
At Doane & Doane, we help you determine the best tools to plan for life’s eventuality. Let us help you. We at Doane & Doane combine big firm resources and experience with the personal touch of a small, boutique firm. We pride ourselves on offering the kind of one-on-one attention that clients at big firms often do not enjoy.
After almost two decades of practice, we have earned the reputation as one of West Palm Beach’s most prominent tax and estate planning law firms. In particular, we understand that estate and probate matters involve a great deal of emotion. We are privileged to help clients on such important matters, and we genuinely care for and support our clients and their families.
We hope that all of our clients, friends, and business associates enjoy the hospitality of our firm’s legal staff. Doane & Doane serves clients in the communities along Florida’s Gold Coast and Treasure Coast, including Palm Beach, Broward, Miami-Dade, Indian River, St. Lucie, and Martin counties. For a free consultation and to get to know our firm, please give us a call at 561-656-0200.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact an attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.