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When should an estate plan address the issue of guardianship?

Although the tragedy of a minor child losing both parents is not that common, a comprehensive estate plan should provide for this contingency by naming a guardian. If a will doesn’t name a guardian, a court will most likely appoint a relative to the task.

However, there may be important reasons why parents might name someone other than a relative to be the guardian. For example, parents might have a close relationship with certain neighbors, and naming them to be guardians would spare the surviving child the displacement of moving to a strange location and school.

Yet minor children are not the only demographic that may require a guardian. The elderly and/or incapacitated may also need an appointed individual to protect them.

Unfortunately, a recent article suggests that court-appointed guardians may be abusing their positions. Under Florida law, a person deemed incapacitated by a judge often loses substantial rights over his or her self-care and finances. Said another way, someone deemed incapacitated may no longer have a say in his or her medications, financial planning, social interactions and other areas.

According to one commentator, court-appointed guardians in Florida need to be randomly audited to safeguard against corruptions in the system. Fortunately, state lawmakers have taken note, and several bills to this effect are being considered.

Of course, perhaps the best way to avoid unexpected results from a court-appointed guardian is for individuals to name one in their wills and/or trusts. An estate-planning attorney can be a valuable resource in naming a guardian. An attorney can provide an overview of the duties involved and financial considerations.

Source: Miami New Times, “Florida’s Broken Guardianship System Could Finally Get Overhauled This Year,” Michael E. Miller, March 4, 2015

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