Florida

As in a number of other states, Florida laws permit court appointment of a standby guardian prior to the triggering event, or alternatively through parental designation with court proceedings occurring after the triggering event. These separate procedures are embodied in two different laws. If the parent wishes to obtain court process prior to the event, Florida Statute 744.304, entitled "Standby guardianship" is followed. If private designation is chosen, to be followed by court process after the triggering event, Florida Statute 744.3046 entitled "Preneed guardian for a minor" sets out the requirements. [Dom.Rel. 744.30046(1)-(4)]


I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process
Resources


I. Designation of Standby Guardian

Domestic Relations law 744.3046 states that both parents, or a single surviving parent, may make a "written declaration" naming a guardian for the child in case the parent dies or becomes incapacitated. If there are two parents, both must sign. The document must be witnessed. This declaration is filed with the clerk of the court, to be produced when a petition for incapacity or a death certificate commences the court appointment process. Through the declaration, the designated guardian is rebuttably presumed to be fit to serve.

Although designation is not explicitly addressed in the other applicable statute [Dom. Rel. 744.304], it seems likely that the parents usually would nominate a particular person as the guardian in that situation as well, and that the designation would accompany the petition for standby guardianship.




II. Agreement of the Non-Custodial Parent

The issues of locating and securing agreement of the non-custodial parent are not addressed in either statute. Nevertheless it is clear that such agreement is expected. "Both parents, natural or adoptive" must sign the written attested declaration that nominates the guardian. [Dom.Rel. 744.304(1); 744.3046(1)-(2)] The petition relating to incapacity or death is only filed for the "last surviving parent," with the implication that any living parent would otherwise assume guardianship of the child. [Dom.Rel. 744.304(3); 744.3046(5)] As another section describes, "The mother and father jointly are natural guardians of their own children, and of their adopted children, during minority. If one parent dies the natural guardianship shall pass to the surviving parent, and the right continue even though the surviving parent remarries." (Dom.Rel. 744.301(1)] Therefore a person who is the single head of a family must find the non-custodial parent, or explain to the court why that could not be done. The statute does not indicate whether "reasonable efforts" or "diligent search" would be the standard of notification the court would apply.

If the non-custodial parent is found, but his agreement cannot be secured, a proceeding to override his refusal by declaring him unfit could be arduous. There is no easy way out of this procedural dilemma in that many Florida divorce decrees provide for shared parental responsibility, rather than sole custody of the child to one or the other parent.

If the non-custodial parent is found, and his agreement is secured, he needs to sign the written designation in front of two witnesses. [Dom.Rel. 744.3046(2)]





III. Role of the Standby Guardian

A guardian for a child in Florida is a "plenary guardian." That means one who can exercise all the legal rights and powers for the child that can be delegated – in a practical sense, standing in the place of the parent. [Dom.Rel. 744.102(8)(b)] There is no question of concurrent authority, because the guardianship is not activated until the parent is incapacitated or dead. Once the power is transferred from the sole surviving parent, it is fully delegated to the guardian. [Dom.Rel. 744.304(3); 744.3046(5)]

When the parent is perceived to be incapacitated, it often will be the task of the designated guardian to file a "Petition for incapacity" with the Clerk of the Court. [Dom.Rel. 744.3046(3)] An Examining Committee of 3 experts will be required to meet with the allegedly incapacitated parent within 5 days and report its conclusions to the court. [Dom.Rel. 744.3201; 744.331] if the court adjudicates incapacity, the guardian's duties begin at once. Within 20 days the guardian must file a petition for confirmation of the guardianship. [Dom.Rel.744.3046(7); or 744.304(4)]




IV. Court Process

Florida lawyers say that the defining difference between the Standby guardianship law [Dom. Rel. 744.304] and the Preneed guardian of a minor law [Dom. Rel. 744.3046] is that letters of guardianship issue before the triggering event under the former, and after the triggering event under the latter. In other major respects, the two laws are similar. Under both laws, the triggering events are either death or incapacity. If incapacity, a petition for incapacity is filed. When the court receives a death certificate, or adjudicates incapacity after receiving a petition for incapacity and a report from an Examining Committee of 3 experts, the appointed (if under 744.304) or designated (if under 744.3046) guardian's duties begin. Within 20 days the guardian files for confirmation of appointment. Under 744.3046, the hearing is then held and letters of guardianship issue.

		Florida Statutes Annotated Title XLIII. Domestic Relations Chapter 744. Guardianship Part III. Types of Guardianship sec. 744.102, 744.301, 744.304, 744.331, 744.3046, Juv Code 39.01, 39.810, Dom.Rel.61.13