What Happens When a Guardian is Not Named?

Attorney L. Reed Bloodworth is the managing partner of Bloodworth Law, with offices in Orlando, Florida, and Winter Haven, Florida. 

The Bloodworth Law team handles estate planning services for clients across Florida and can work with you remotely, via Zoom video conference, or in the office with the appropriate safety measures taken to protect you as you get help with your legal needs.

What Happens When a Guardian is Not Named?

What happens when a guardian is not named in a will, or, if a parent, or parents, die intestate without a will or legal plans? In these cases, what happens to the children?

What is a Guardian?

What is a guardian? A guardian is a person or persons whom parents select to take care of their children in the event that both parents pass away, or if there’s just one parent, and one parent passes away.

If you name a guardian, the court is going to defer to the guardian you named as long as they are qualified, as long as they don’t have a felony in their past, and they pass the statutory requirements because that’s who the decedent selected.

No Guardian? Courts Can Decide

If a guardian is not named, then the court can name someone. That might be someone you did not want to be the guardian of your children. Any family member can then come in and petition to be the guardian. But if no one petitions to become the guardian, then the court will pick one.

Guardians Must Pass Checks and Reviews

A guardian has to pass a thorough background check. And the financials of the individual or couple are reviewed.

If a guardian has financial problems, the court may appoint a guardian of the person or the child who needs a guardian, but not necessarily the guardian of the property or the assets. Courts routinely appoint a guardian of the person and a guardian of the property.

If there is a death, and the parents die, normally family members will come and stay with or pick up the children. If it’s a close family, they’ll come and take the children and care for the children until such time the guardian is officially appointed by the court. 

The Department of Children and Families, or DCF,  isn’t called unless there are other family problems going on, which does happen.

A guardian is one instance where a child’s future could be held up in court if there are any issues.

Guardianship Passes Through Probate

A guardianship is still a process that when somebody has a will, it has to go through probate, and that’s going to take some time. Especially if there are numerous beneficiaries named. You have to notify everyone.

Estate planning is the act of creating the legal documents needed when someone dies. Every estate plan is unique and it should reflect the needs and the wishes of each individual. 

In an estate plan, in addition to a will, there are ancillary documents, including:

• The durable power of attorney
• The health care surrogate
• The living will, and
• Creating a guardianship

Over 18? You Need Estate Planning

Everyone should have their estate planning done by an attorney. Estate planning is important for kids who graduate high school because they’re not kids at 18  — they’re adults.

If something happens to a college student or anyone over 18, and they don’t have their ancillary documents, their durable power of attorney, health care surrogate, the parents can’t necessarily make decisions to help them. Everyone over 18 needs those documents.

Estate planning should be done with the legal guidance of an attorney, especially if there are children involved. You can’t rely on something you read on a website, because it’s only a partial descriptor and you can’t take legal advice from the internet. 

The Estate Planning Team at Bloodworth Law is ready to assist with these and any other issues you may face.

Reed Bloodworth is the managing partner of Bloodworth Law. Give Reed a call to talk about how Bloodworth Law can help you and your family.