By: Barry E. Haimo, Esq.
May 18, 2015
Can I Use My Will to Name a Guardian to Care for My Young Children and Manage Their Property?
BARRY HAIMO: In Florida, a will does enable you to appoint a guardian over your children’s person and property in the event that you and your spouse—or their other parent—are deceased.
A guardian is a person who has legal authority to care for another person and their property. This person is sometimes referred to as a “ward.” In this context, it refers to the person who will assume the responsibility and legal right to care for a minor in the event his or her parents pass away.
Often our children are the most valuable things we leave behind. As you draft your will, you may become concerned about your child’s wellbeing. What will happen in the unlikely (but possible) event that both parents pass away?
Florida law allows you to address this important concern in your will. In most cases, if one parent dies, guardianship is continued through the child’s other parent.
Sometimes this isn’t an option, however. Naming a guardian ensures that whoever raises your child will be your choice—not the court’s.
When both parents of a minor are deceased and no guardian has been named, the guardianship courts appoint a guardian based on the best interests of the child. If a guardian has already been named in the will, in most cases the probate court will appoint this person—unless the named guardian is deemed grossly unfit to raise a child.
Whoever you choose become a personal guardian will assume the role of the child’s legal parent, allowed by law to make decisions regarding the child’s development until your child turns 18. For example, your child’s guardian can choose where your child goes to school, what kind of medical care they receive, and where they will live.
Guardians also assume the responsibilities of raising your child, providing the basic needs such as food, housing, healthcare, and education. In general, they are appointed to protect the child’s wellbeing until he or she becomes an adult.
If you like, the personal guardian can be responsible for taking care of the property you leave behind for your child. However, you can also pick another person to perform this duty, by naming a “property guardian.”
A property guardian can manage the property you left behind in the event there is no trust or other mechanism to handle your estate. For example, you may want your child to inherit your house upon becoming an adult. Your property guardian can assume the responsibility of caring for that home until the child turns 18. You could also set up a trust for any property your child will inherit, and name a trustee to manage the trust properly until you decide they should take over control and management.
For obvious reasons, the individual you name to be a guardian should be someone you trust completely. You should also have a conversation with the prospective guardian, making sure he or she is willing and able to shoulder this responsibility. Additionally, it is important to name a back-up guardian in the event your first choice is unable or unwilling to perform this duty.
Barry E. Haimo, Esq.
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