Looking at the Law:  Coronavirus Pandemic: How does this affect planning for guardianship over children?

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By Greg Crosslin

Greg Crosslin

For the most part, everyone plans for distribution or preservation of their assets to make sure their minor children, adult children, and their families are taken care of at the time of their death. Unfortunately, people often overlook planning for the event of being mentally incapacitated or simply “unavailable” for their children. In view of the Coronavirus pandemic, Estate Plans should answer the question: what happens if I’m simply “unavailable.”

The Covid-19 pandemic has given people a new perspective, with the overwhelming number of hospitalizations, quarantines, and when front-line workers (nurses, doctors EMTs, and others) are forced to make the difficult decision of being separated from their minor children to avoid them contracting the virus. This pandemic has taught us that now perhaps it is more important than ever for a parent to plan for the guardianship of their minor children. Accordingly, there are three documents that I believe every parent should consider for their minor children:

  1. Medical Power of Attorney essentially allows someone other than natural guardians/parents to make medical decisions, including procedures or treatment, and if necessary, surgery. It is also often referred to as a “Healthcare Surrogate for Minor.” Florida Statute §765.2035 advises that this designation remains in effect until terminated by the person who made the declaration. Further, a Healthcare Surrogate can also be named before a child is born.
  1. Power of Attorney for Minor Child is a document that addresses more of the day-to-day activities and care than a Medical Power of Attorney, and includes the following:
  1. Care for school and after school decisions, transportation arrangements;
  2. Receiving and holding any funds or property payable to the minor child;
  3. Residency of the minor child;
  4. Nominating a person to act as a Guardian;
  5. The signing of Waiver and Release of Liability (kids go on field trips, etc.);
  6. To access communications intended for the minor child (Certified Mail, FedEx     Delivery);
  7. Access to accounts of the minor child involving web-based communications, such as email, memberships to various organizations, or even commercial enterprises and social media;
  8. Representation of the minor child in any legal matter.
  1. Declaration of Preneed Guardian. Is a legal document that is filed with the

Court which designates the Guardian for the Person and Property of the Minor in the event of death or incapacity of the natural parents of the child pursuant to Florida Statute

§744.3046. This does not replace the rights of another natural parent and the Court is not bound to designate the person named. It is however, strong evidence of the parents’ intentions and is often followed by the courts.

In addition to the above items, there are other considerations that should be carefully accounted for in your planning. For instance, in your Will you should provide insight as to why the person named as a Guardian is the best fit for that position. This is especially important when the natural parent has not been involved in the child’s life and it would not be in the best interest of the child to be in their care or custody. While these may seem of “lesser consequence” some of these decisions may become the most crucial issues if documents are contested. Overlooking these types of details can be harmful to your children and costly as well.

Remember, the information contained herein is of a general nature and is not all-inclusive or intended to answer any individual’s legal questions. Do not rely only on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Estate Planning attorney.

Greg D. Crosslin is Principal Attorney at the Law Office of Greg D. Crosslin, 3999 Commons Drive West, Suite D, in Destin, Fl. Call 850-650-7378 or visit www.destinlegal.com for more information.

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