The Answer to Legal Mystery Monday for August 24, 2015

Betty inside.

Betty inside.

The Mystery:

In the last episode of Legal Mystery Monday, we learned that Betty died a horrendous death to shark infested waters. It turns out, she wasn’t pregnant with Bob’s love child, but she did leave behind a young daughter, conceived from a one night stand after too many Mai Thai’s on the beach. Betty has no idea who the girl’s father is.

Betty’s parents are deceased, the worry about their wild daughter having driven them to an early grave, and Betty had no siblings. Betty’s friend Debbie had been glad to watch after the girl while Betty dashed off to the Bahamas with Bob’s funeral director, but she didn’t sign on to be a mother.

Who will take care of Betty’s daughter?

The Answer:

Betty was a mess! Pre-marital sex, babies out of wedlock, homewrecker, worrier of parents…I’m guessing the sharks had indigestion.

This week’s Legal Mystery Monday poses the question “Who will take care of Betty’s daughter?” Of course, everyone instantly thinks – next of kin, but I’ve posed a scenario in which Betty has no next-of-kin. Yes, we could probably dig out some distant relatives, but then you’d mess up my hypothetical. Plus, distant relatives may decline to be an unexpected parent, and the Court could deny even an immediate family member’s Petition for Guardianship, if such an appointment would be detrimental to the child’s best interests.

So how could Betty have better planned for her child? She could’ve created a Preneed Guardian Declaration, as well as created a will that echoes that declaration.

Florida Statutes 744.3046 spells out the requirements for a parent to declare whom they would want to be appointed as a guardian of their minor child, in the event of the parent’s death prior to the child reaching the age of majority. A guardian nomination in a last will and testament is influential. However, the statute requires not only a declaration with very specific content, but it also requires that the declaration must be properly drafted, signed, and filed with the probate court BEFORE the parent dies. (An adult can also pre-plan for his or her own need of a guardian by creating a declaration, but filing with the court before the need arises is not required). Obviously, the parent should chat with the proposed guardian before making the declaration.

There are many estate planning tools that parents could use to provide for their minor child, just in case the tragedy of an untimely death occurs. A Preneed Guardian Declaration is but one of those.

Accidents happen. “It’ll never happen to us,” is not the safety net you want for your little ones. Have you planned ahead for your children? I can help with that. Call me.

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