Securing Your Child’s Future: Essential Incapacity Planning for Parents

As a parent, you are responsible for the care of your minor child. From getting them to school, preparing meals, and meeting other basic needs, they rely on you. Do you know who would care for them if you could not?

two kids walking to school

It is true that the other parent would be able to step in, but developing an estate plan to protect your children is always crucial. Using certain estate planning documents can help someone care for your children if there was ever a true emergency.

What If You Die?

Many parents wisely appoint a guardian for their children to prepare for any eventuality. This foresight is a pivotal part of planning for the unexpected. Taking this step reduces uncertainty, guaranteeing that your child’s future remains in trusted hands.

  • Without an Estate Plan

If you and your child’s other parent die without officially nominating a guardian to care for your child, a judge will have to make a guardianship decision. The judge will refer to state law, which will provide a list of people in order of priority who can be named as the child’s guardian—usually family members. The judge will then have a short period of time to gather information and determine who will be entrusted to raise your child.

Due to the time constraints and limited information, it is impossible for the judge to understand all of the nuances of your family circumstances. However, the judge will have to choose someone based on their best judgment. In the end, the judge may end up choosing someone you would never have wanted to raise your child to act as your child’s guardian until they are 18 years old.

  • With an Estate Plan

By proactively planning, you can take back control and nominate the person you want to raise your child in the event you and the child’s other parent are unable to care for them. Although you are only able to make a nomination, your choice can hold a great deal of weight when the judge has to decide on an appropriate guardian.

The most common place for parents to make this nomination is in their last will and testament. This document becomes effective at your death and also explains your wishes about what will happen to your accounts and property.

Depending on your state law, there may be another way to nominate a guardian. Some states recognize a separate document in which you can nominate a guardian, and that document is then referenced in your will. Some people prefer this approach because it is easier to change the separate document as opposed to changing your will if you want to choose a different guardian or backup guardians.

What If You Are Alive but Incapacitated and Cannot Manage Your Own Affairs?

If you are alive but unable to care for your child due to an accident or illness, there may be instances in which you need someone to step in and have authority to make decisions for your child. 

  • Without an Estate Plan

Not having an incapacity plan in place that includes guardianship nominations means that a judge will have to make this judgment call on their own with no input from you (similar to the determination of a guardian if you die without a plan in place). 

  • With an Estate Plan

A comprehensive estate plan can also include a nomination of a guardian in the event you and the child’s other parent are incapacitated (unable to manage your own affairs). Although you are technically alive, if you cannot manage your own affairs, there is no way that you will be able to care for your minor child.

This is another reason why having a separate document for nominating a guardian (as described above) may be preferable to nominating guardians directly in a last will and testament. Because a last will and testament is only effective at your death, a nomination for a guardian in your will may not be effective when you are still living.

However, a nomination in a separate document that anticipates the possibility that you may be alive and unable to care for your child can provide great assistance to the judge when evaluating a guardian. Depending on the nature of your incapacity, this guardian may only be needed temporarily, with you assuming full responsibility for your child upon regaining the ability to make decisions for yourself.

What If You Are Just Out of Town?

Sometimes, you travel without your child and will have to leave them in the care of someone temporarily. We all hope that nothing will go wrong in our absence, but it is better to be safe than sorry.

  • Without an Estate Plan

Without the proper documentation, there may be delays in caring for your child if your child were to get hurt or need permission for a school event while you are out of town. The hospital or school may try to reach you by phone in order to get your permission to treat them or allow them to attend a school event.

Depending on the nature of your trip, getting a hold of you may not be easy (e.g., if you are on a cruise ship with little access to phone or email). Ultimately, your child will likely be treated medically, but the chosen caregiver may encounter additional roadblocks trying to obtain medical services for your child, and they may not be able to make critical medical decisions when needed.

  • With an Estate Plan

Most states recognize a document that allows you to delegate your authority to make decisions on behalf of your child to another person during your lifetime. You still maintain the ability to make decisions for your child, but you empower another person to have this authority in the event you are out of town or cannot get to the hospital immediately. This document allows your chosen caregiver to make most decisions on behalf of your child, except for consenting to the adoption or marriage of your child.

The name of this document will vary depending on your state and is usually effective for six months to a year, subject to state law. Because this document is only effective for a certain period of time, it is important that you touch base with us to have new documents prepared so that your child is always protected.

Safeguarding Florida Families

Life is unpredictable, but the well-being of your children doesn’t have to be. At Rise Up Legal, we’re dedicated to ensuring that, come what may, you and your children are prepared and protected. For more information on Florida’s legal requirements for court-appointed guardianships, visiting the Florida Courts’ official guardianship page is a good start. You can also contact us today to discuss how we can secure the right guardianship decisions for your family, even when you can’t be there yourself. At Rise Up Legal, our goal is elevating Florida families with strategic estate planning for tomorrow’s generations.

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