Estate planning is not just a matter of what will happen after you pass away. If the later years of your life leave you unable to make legal or financial decisions, a guardian will be put in place to make these decisions for you.
While a loved one is able to petition to be your guardian when the time comes, it is highly recommended that you choose your own guardian – and document your choice – while you still have the mental capability to make those decisions.
If a court rules that you are mentally incapable of making important decisions and a guardian is not chosen, the court will choose a guardian for you. While this is not necessarily the end of the world, it can often result in conflicts, or a standard of care that does not match what you or your loved ones would have wanted.
Again, state-appointed guardians will only be put into place if an appropriate guardian is not already chosen. Action should be taken as soon as possible. After all, as we have mentioned in a previous blog post, as soon as someone becomes an adult, a lack of end-of-life documents put their health decisions in the hands of the state.
Follow these tips for choosing a guardian that will take proper care of you during your later years in life and make decisions with your wishes and bests interests in mind.
Write the Appropriate Documents. In Florida, you can choose guardians or people to look over your estate with a few different documents. These documents, called advanced directives, will determine your intentions on end-of-life decisions, as well as who will make other decisions that are not specifically mentioned.
These documents include a power of attorney, living will, and a health care surrogate designation. Contact a Florida estate planning lawyer for more information on which of these documents is right for your estate plan.
Have Everyone On Board. One of the reasons that third parties are chosen to be a guardian has nothing to do with the individual in question at all. Feuding family members often leave authorities faced with a dilemma, even if all of the proper paperwork has been filed.
When you choose a guardian, let your loved ones know of your plan so they are prepared and any conflicts can be resolved before a guardian needs to be put into place. This will ensure a smooth transition into guardianship and leave no member of the family surprised.
Have a Backup Guardian. Florida has specific qualifications for guardianship. Felony convictions and out-of-state residency may prevent your first choice from becoming your guardian when the time comes. Make sure, before you put someone’s name down in the proper documents, that your guardian is fit to take on the position.
If the guardian you choose proves to be unfit for the position, then you might be out of luck when the time comes. Choose and list a second or third choice so that you are guaranteed a guardian that is chosen by you, rather than the state.
Continue to Update Your Estate Plan. It’s great to have second and third choices for guardianship, but unless these names are documented, they won’t make a difference in court. You should continue to update your estate planning documents throughout your life. Remember to include and update your advanced directives as well.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.