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What Happens If You Do Not Designate a Guardian for Your Child, And Something Happens to You Both?


Guardianships are more important than many realize. Here in Florida, we hear a lot about them with respect to the elderly, especially concerning the corruption that has been unearthed in connection with some professional guardians and examining committees that judges rely upon in deciding whether individuals are incapacitated and in need of a guardian. However, parents also designate guardians for their children in case something happens to them while their children are still minors such that they can no longer take care of them. If both parents die intestate—i.e. without a will—failing to designate a guardian, the child’s fate is left up to the court.

Who Can Serve as A Guardian in Florida?

In Florida, both relatives and other adults who are unrelated to the child qualify as potential guardians for the child unless they have been convicted of a felony or are incapable of carrying out the role of a parent; regardless of whether they live in Florida or not.

How Do the Courts Make This Decision?

While the court will make this decision based on what is in the best interest of the child, in a number of cases, relatives such as siblings, grandparents, next of kin, etc. will voluntarily come forward to assume the role, petition the court to be appointed, and be appointed by the court without adjudication.

However, if the child is at least 14 years old or older, the court must consider the preference of the child. In addition, if several relatives or third parties all want to act as guardians of the child, and there is litigation, it is also possible for the court to appoint a guardian ad litem to represent the best interests of the child to assist the court in making this decision. Ultimately, again, the court is responsible for appointing the guardian based on what is in the best interests of the child; an evaluation that involves weighing a number of factors, such as the continuity of the child’s current circumstances (including the possibility of staying in their current home and school), the existing relationship between the child and the relative or individual who wishes to serve as guardian, the prospective guardian’s mental, moral, and physical status, their ability to provide for the child and be involved in their life, etc., all of which is evaluated based on evidence presented during a hearing.

The Importance of Planning Ahead of Time for Your Children: Contact Us to Find Out More 

It is crucial to have a plan in place that very clearly names a legal guardian for your child, should the worst happen, as failure to do so could lead to devastating consequences, including the child potentially becoming a ward of the state if there are no surviving family members or third parties available to serve as guardians for the child, or even being cared for by someone you would not have chosen.

At Gierach and Gierach, P.A., our Orlando guardianship attorneys can guide you through every step of the process, from drafting your will, to designating a legal guardian to care for your minor children, to everything else that is necessary to ensure that you feel safe and secure in moving forward. Contact us today to find out more.





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