In Florida, there are two primary ways to designate a backup guardian: by using a guardianship clause in your will and by designating a pre-need guardian with the clerk of court. A good estate plan will do both.
The first way to designate a guardian is in your will through the use of a guardianship clause. A guardianship clause is a provision in a last will and testament that states who you want to be the legal guardian of your children should the child’s natural parents pass away.
The second way to designate a guardian is by filing a document with the clerk of court which designates someone to serve as pre-need guardian of your children should you (and any other current guardian) pass away or become incapacitated.
We strongly recommend that parents of minor children do both. And we regularly assist our clients in doing just that. We handle the entire process, from drafting the paperwork to telling you where to sign to filing the proper forms with the court. Our goal is to make the process simple for you and for you to know that a plan is in place should the worst happen.
The best way to name a guardian for your children to take over if you pass away is a legal document called a Declaration of Preneed Guardian for a Minor Child. This is an important document for any parent of a minor child in Florida. If this document is drafted property and filed with the clerk of court, the person you name as backup guardian can begin taking care of children immediately after the parents die, even before the guardianship judge gets involved. This means that your children will not have to spend any time without a familiar face nearby to care for them.
A Designation of Preneed Guardian for a Minor Child must contain certain information in it to be valid, including your child’s full legal name, social security number, and date of birth. It also must be filed with the Clerk of Court. All of the requirements can be found in section 744.3046 of the Florida Statutes.
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A preneed guardian is a person you select to handle your affairs in the event that you become incapacitated. A preneed guardian is selected with a document called a Designation of Preneed Guardian.
Yes, a declaration of preneed guardian for a minor should be filed with the clerk of court. This is clearly established both in the Florida Statues and case law.
Section 744.3046 of the Florida Statutes explicitly states: “The declarant must file the declaration with the clerk of the court.” The word “must” is important here, as it indicates a requirement. Thus, by statute, simply filling out the paperwork is insufficient; that paperwork must also be properly filed. In O’Brien v. McMahon, Florida’s First District Court of Appeal said that the nominating a preneed guardian required “making a written declaration and filing it with the clerk of court.”
Unfortunately, many attorneys fail to meet the basic statutory requirements on these documents. I have seen designations that were missing key pieces of information or that were never filed with the Clerk. One attorney I spoke with defended these practices by saying, “No one does any of that. It’s probably fine.” I disagree. Declaring a guardian for a minor is far too important to cut corners. At this firm, we do it by the book.
Think of a designation of preneed guardianship as a recommendation to the court. It is a way to inform the court of who you trust enough to handle your affairs. This recommendation carries a lot of weight with the court, and by law the default presumption is that the person you designate is entitled to serve
No, your preneed guardian does not automatically become your guardian. The person you select will need to be approved by a court first. If it turns out that the person you selected is not qualified (perhaps due to a felony conviction or not being a Florida resident), then a different guardian will likely be selected by the judge.
If the person you designate as preneed guardian either cannot or will not serve, then your alternate selection will be considered by the court. I always recommend that my clients have at least one backup listed on the document, just in case something like this occurs. However, it is a good idea to speak with the person you intend to designate as preneed guardian so that you can make sure they are willing to serve should the situation arise.
You can and probably should list more than one person as preneed guardian, one as your primary choice and another as an alternate. However, you should probably not list two people to serve at the same time. Having joint guardians will likely result in fights and even litigation. The better path is to designate a primary selection along with a backup.
A guardianship clause communicates your choice of person to care of your minor children after you die. After your death, the court will appoint a guardian for your child based on the best interest of that child. A guardianship clause is separate from and in addition to the Designation of Preneed Guardian for a Minor Child.
Your guardianship clause can be found in your last will and testament. You can include stipulations regarding what the new guardian’s rights and responsibilities are and voice your desires as to how your child is to be raised. In your estate plan, you can also provide financial support for the guardian. I always recommend that parents use both a Designation of Preneed Guardian for a Minor Child and a guardianship clause in the will. I also recommend that the same backup guardian be named in both documents.
The guardianship clause is written into your will. A court will then be presented with this document when determining who ought to be the new guardian of your children. Unless given good reason to do otherwise, courts almost always respect the wishes of the parent as described in the will. Indeed, section 744.312(3)(c) of the Florida Statutes requires courts to consider the designated guardian in a will. Thus, the guardianship clause does not bind a court, but it is typically followed by the courts and thus is an important part of any estate plan for parents with minor children. If you are a parent and your will does not contain a guardianship clause or if you simply do not have a will, you should contact an estate planning attorney immediately to make sure your wishes are recorded.
Without a guardianship clause or designation of preneed guardian, a court will have no guidance from you as to whom you would have wanted to raise your child. This can result in a court choosing someone to raise your children who shows no regard for your values or desires. Having no guardianship clause can also lead to family strife, with different family members fighting for custody of the children.
For a Designation of Preneed Guardian for a Minor Child, the best solution is to simply file a new, amended designation with the Clerk of Court. I would explicitly revoke the old designation in that new instrument.
For the guardianship clause, you can change the designated guardian for your children by either executing a new will or amending your old will with a codicil. You should also update your preneed guardian designation with the Clerk of Court. If you change your mind, it is important to update your estate plan as soon as possible. Otherwise, you risk passing away with your documents not reflecting your actual wishes.
Yes, godparents can take custody after the parents of a minor child die, but only if the parents declare this in their estate plan. The parents can name the godparents as backup guardians by either using a Designation of Preneed Guardian for a Minor Child or by naming the godparents in a guardianship clauses of their respective wills. Ideally, the parents should do both if they wish the godparents to have this role.
PTM Trust and Estate Law is happy to answer your questions about guardianship declarations. Please call 352-554-5576 or contact us online to schedule a free consultation. If you do not live near Gainesville, then we will be happy to schedule a free phone meeting instead. We help clients all throughout the state of Florida.
