Guardianship affords the opportunity to care for a person without assuming the role of a parent through adoption. For parents of children with special needs, planning for guardianship after age 18 can ensure continued access to government benefits and the ability to continue to make decisions on your child’s behalf. In short, establishing guardianship can serve a variety of important purposes, and there are a number of circumstances under which the appointment of a guardian for a minor – either now or in the future – may be appropriate.
Serving as a guardian is both a privilege and a responsibility. While guardians can be removed, they cannot “quit,” and they can face civil liability if they fail to uphold their legal obligations. Depending on the specific needs of the child involved, the benefits and requirements of guardianship can include:
- Providing the minor with a permanent residence;
- Authorizing medical care on the minor’s behalf;
- Obtaining health insurance for the minor under the guardian’s policy;
- Preserving the minor’s eligibility for government benefits;
- Making purchases, paying expenses, and investing on the minor’s behalf;
- Communicating with teachers and school administrators, and making decisions regarding the minor’s education; and,
- Ensuring that other decisions are made in the minor’s best interests.
4 Situations When Appointing a Guardian for a Minor May Be Necessary
Appointing a guardian for a minor is a significant step that requires careful consideration and a sufficient understanding of the legal issues involved. This includes appointing a guardian:
1. When Preparing Your Estate Plan
As a parent with a child who is under the age of 18, appointing a guardian is an important component of the estate planning process. In the event that you and your child’s other parent both die unexpectedly, appointing a guardian in your estate plan ensures that you get to determine who will raise your children in your absence. If you do not appoint a guardian, the Florida courts will appoint one for you and your relatives may or may not agree as to who is the best choice. By choosing in advance (which should involve discussing your desires with your chosen guardian), you can protect your child and other family members from this difficult scenario.
2. When Planning for Your Child’s Special Needs as an Adult
If you have a child with special needs, even though you are his or her parent, once your child reaches the age of 18, he or she will become independent (or “emancipated”) under Florida law. In order to retain the ability to manage your child’s health care and finances, you will need to become his or her guardian (although, under certain circumstances, other options may be available).
3. When a Child’s Parents Are Not Fulfilling Their Responsibilities
While the two scenarios discussed above involve parents voluntarily appointing a guardian for their minor child (in the second scenario, appointing themselves), there are circumstances in which someone may need to step in and seek guardianship of a minor against the parents’ wishes. While these types of guardianship proceedings can be emotionally challenging for everyone involved, they can also be critically important for ensuring that the minor’s needs are met and that he or she has a stable and loving home environment. Parental abandonment, drug use in the home, physical abuse, and other dangers may necessitate a family member or other caring adult taking over for parents who are unable or unwilling to fulfill their responsibilities.
4. When the Child’s Parents Are Going through a Divorce
When going through a divorce, parents must develop a parenting plan that reflects their children’s best interests. If they are unable to come to terms, then the court will need to apportion custody and visitation rights consistent with Florida law. In some cases during this process, it will be necessary to appoint a guardian ad litem. The guardian ad litem does not serve in the capacity of a guardian as discussed above, but instead represents the child’s best interests during the custody portion of the parents’ divorce.
Planning or Petitioning for Guardianship of a Minor in Florida
The steps involved in planning or petitioning for guardianship will be determined by the specific factual scenario involved. When appointing a guardian in your estate plan, the legal documentation required is fairly straightforward—the most difficult aspect is often choosing someone you trust who is also willing to take on the responsibility if and when the need arises. When planning to retain decision-making authority for a child with special needs, there are more legal and practical issues to consider. But the process is still typically far less onerous than going through a contested guardianship proceeding. The courts will typically defer to the parents when deciding what is in a child’s best interests, and judges understand that special needs call for special planning. By working with your child’s care providers and an experienced attorney in family law, you can develop a guardianship plan that reflects your personal desires and serves your child’s long-term needs.
If you need to petition for guardianship of someone else’s child, the process is much different than appointing a guardian for a child of your own. You will need to prepare and file a petition in the appropriate court, and you will need to go through the process of demonstrating that both (i) the appointment of a guardian is necessary, and (ii) you are the right person to be appointed. The process can take time. And if the parents contest your petition for guardianship, it can become adversarial. In order to ensure that the process goes as smoothly as possible, you should begin by speaking with an attorney.
Speak with an Experienced Lawyer in Confidence
Our attorneys represent parents and other individuals in estate planning, special needs planning, and guardianship proceedings in Jacksonville and throughout Florida. If you need legal advice and would like to speak with an attorney, we invite you to call 904-288-4414 or contact us online to schedule a confidential initial consultation.