Who will take care of my children when I am gone?

The other day, some parents came to my office because they were worried about the well-being of their children in event of their demise. First, we talked about documents we could draft that would help their children understand the parents wishes if the parents were incapacitated, but not deceased. Those documents include living wills, health care surrogates, and durable powers of attorney. These documents, while they do not directly state how children should be cared for, allow the parent to make decisions while they are of sound mind and outside of an emergency situation.

As responsible parents go, these parents were not satisfied. They wanted documents that listed who will take care of their children should something happen to themselves. Until speaking with me, they thought that this information could be included in a Last Will and Testament. While this type of information can be discussed in a Last Will and Testament, it is more prudent to create a Declaration for a Pre-Need Guardian for Minor Children.

Fla. Stat. 744.3046 discusses the requirements for a Pre-Need Guardian for Minor Children. According to the statute, “Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent’s minor child by making a written declaration that names such guardian to serve if the minor’s last surviving parent becomes incapacitated or dies.”

The pre-need guardians and the children must be reasonably identifiable and the declaration, much like a will, must be signed by the declarant in the presence of at least two (2) attesting witnesses. However, unlike a will, a declaration for a pre-need guardian must be filed with the clerk of court.

After discussing the specifics of the declaration, the parents and I discussed who they wanted to appoint. I suggest that the parents identify at least two (2) people with whom the children would be comfortable around in such an emotional time, individuals who will raise their children with the same values the parents cherish, and individuals in good health. As is the similar practice in other estate planning documents, we discuss the importance having a primary nominee and, if that person is unavailable or does not want the duty, a second choice.

A good lawyer will look at a situation and attempt to predict when, where, and how future litigation will arise. Estate planning documents usually come to the surface once something tragic has happened. Tragedy is usually accompanied by volatile emotions. Therefore, sometimes in these documents we need to address individuals who may think they should be nominated, but were not. For instance, if both the mother and the father have sisters, it will be important to briefly discuss why one sister was chosen and the primary and one was chosen as the back-up (or not chosen at all). It might be as simple as physical distance (i.e. one sister lives in town while the other sister lives across the country). But, what if it is more complicated? Say one sister has, what the parents consider, a spending problem. It is important to draft language that is clear and unambiguous, but that language does not have to rude or aggressive.

If you, or someone you know, need estate planning documents , please contact the knowledgeable lawyers at Fletcher and Phillips at 904-353-7733.

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