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Child & Family Planning

Hopefully a remote, unlikely situation, but perhaps one that can cause concern for many parents, is what happens for your children if you and your spouse/other parent both become incapacitated or pass away. This topic, Child & Family Planning, deals with these scenarios.

A common thought is to name guardians in a Will, but what happens if you and your spouse or other parent (or just you if there is no other parent) are out, and for some reason don’t make it home one night; and law enforcement arrives at the home to check on the children who are with a 16 year old baby sitter. Or perhaps, you have family in the area and the children are with a family member who is babysitting.

In the first scenario, law enforcement can’t leave minor children with the babysitter; and family watching children doesn’t under Florida law establish legal guardianship over the children. You can never be completely sure about the decision particular law enforcement or Child Protective Investigators will make in any given situation; and all of these scenarios raise the possibility of children being temporary taken into protective custody by Child Protective Services.

Perhaps there is a Will in the house, or in a safety deposit box, but Wills need to go through Probate Court to have their provisions approved. Or perhaps, the legal guardians named in a Will are family members living out of town. Possibly things would work out well, but there are times when they don’t, at least without interim problems; and there are cases where family members after parents pass away engage in Court battles over who will raise children, and manage any inheritance the children receive.

These may not be concerns for all families, but when they are there are procedures in Florida law that can go very far to avoiding difficulties. The first is designation of a “Pre-Need Guardian”. This is a process provided for in Florida Statutes Section 744.3046, involving naming a Guardian and alternate in advance, in a writing signed with two witnesses, listing your child(ren)’s name, date of birth and social security number, which is then filed with the Clerk of Court in the County where you live. The Statute specifically says that the pre-need guardian assumes care for you child immediately upon the death or incapacity of both parents, and then needs to file papers with the Court within 20 days.

There can never be complete guarantees about what happens when law enforcement shows up at a door, but having a Certified copy of the Court filing, showing the file stamp and Certification of the Clerk of Court, along with a copy of the Statute attached can be very helpful.

In situations where it is important to have more certainty — for example when a parent or parents are ill, there is also a process under Florida law to apply in advance to the Court for a Court Order, signed by the Judge, naming what is called a “Standby Guardian”.

Other factors that are important sometimes – if the person or persons you want to raise your children long-term live out of State, it is important to name a local, temporary guardian to take care of your children in the short-term, for example until family arrives from out of town. You can leave instructions for guardians explaining in as much detail as you want, what is important to you for the care and raising of your child(ren), and your wishes that you want followed.

To be sure you choice of guardian can be quickly located, you can carry in your wallet a laminated id card, listing names and contact information, including the location of written instructions at home; and leave with babysitters the same information, so they will have it also if law enforcement ever arrives at the door. We’ll prepare the cards for you as part of Life & Estate Planning, if developing a plan for your children is part of the planning for you.

Sometimes there is a potential guardian candidate who you would never want to raise your children. In that event we can prepare confidential documents excluding that person, listing the reasons, to used and filed with the Court only if needed. Although this is not a completely settled issue of law, there is recent caselaw law in Florida this year, 2020, addressing a parent’s constitutional right to raise and direct the care of their children, and a parents’ instructions disqualifying a potential guardian will be significant in the event of a court conflict after you pass away or become incapacitated

Call me at (954) 636-7498, or use the Contact form on the Website, and we can discuss Child & Family Planning for your family.


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