There are a few types of guardianships under Florida Statutes, which includes a type of guardianship for developmentally disabled children. Most people typically associate legal guardianships with caring for an adult who has lost capacity through some type of misfortune (car accident, motorcycle accident) or through a disease process (Alzheimer's and dementia). However, there are common instances in which a minor, those under age 18, will need a guardianship proceeding commenced on their behalf by their own parents (or others). These are called a guardianship for minors.
The key factor determining the need for natural parents to establish a guardianship for minors is the distinction between how the law divides the roles of a guardian between “guardian of the person” versus “guardian of the property”. Simply put, the ability to manage personal decisions (guardian of the person) and manage financial decisions (guardian of the property) are treated differently in the law, sometimes for adults, but always for minors.
Obviously, a parent (the “natural guardian”) already possesses all the rights associated with being the “guardian of the person” of a minor, such as healthcare decisions, school choice and residency or domicile. However, parents are sometimes surprised to learn they do not have the same natural right to be “guardian of the property”.
Guardianships for minors can roughly/unofficially be divided into two categories:
- Inheritance of over $15,000 -when a minor is a beneficiary of an estate, trust, life insurance policy or other benefit, and the amount also exceeds $15,000, a guardianship for minors would need to be established to receive and manage the benefit. This may happen by less than ideal estate planning (in general, it’s not a good plan to name an minor as a beneficiary), or in cases where a pre-deceased parent is the beneficiary and the minor receives the share the pre-deceased parent was to receive. while the law does not do set this out explicity, if a minor ever inherits money over $15,000, a guardianship must be set up to allow the guardian of the property to control these funds.
- Settlement for a Minor Child - For instance, suppose your child was unfortunately the victim of an accident that thereafter leads to a personal injury lawsuit. When, and if, there is a net settlement or judgment which exceeds $15,000, or any amount awarded in a wrongful death case, a guardianship for a minor must be commenced to receive the proceeds (F.S. 744.301(2). The settlement process for a minor child can be confusing.
Regardless of where funds come through (i.e, either an inheritance or a settlement), the guardian must petition the court to become appointed to legally act on the minor's behalf. Once appointed, the guardian for minor can receive the property in question, and the guardian is thereafter required to file an annual guardianship with the court which includes an annual accounting until the minor reaches the age of majority. When the minor reaches age 18, any funds held in the guardianship are released as the minor now has the capacity to manage his or affairs.
Importantly, the court views any type of money held under the guardianship to belong to the minor, and the court can be very protective of these funds. A parent is not able to spend the guardianship funds freely as the parent still have their own duty to support their minor child. The funds are expected to substantially be available to the minor when he or she reaches age eighteen (18). There are plenty of jokes that the guardian parents wanted to benefit the minor by buying a pool for the house (hey, kids like pools) or cars for the parents to drive the children around in, but courts generally do not like this. It is frequent that a minor's assets are actually invested and placed into a court restricted account, meaning that the guardianship funds cannot only be spent/released upon petition to the court. This will prevent a parent, as guardian of the property, from spending the guardian's funds improperly.
If your child had a developmental disablity (such as autism, spina bifida, Down syndrome), you may be able to use the Guardian Advocate statute to help your child when he or she reaches age 18.
If you need assistance with an inheritance to a minor child or some type of settlement to assist your minor child, please do not hesitate to reach out to our office.