Even though we don’t think about being legally involved with people we are related to, the law recognizes that these relationships are necessary. The two types of legal power of relatives that most people are familiar with are parental rights and marital rights. It’s assumed that a parent will be the automatic person to make legal decisions on behalf of their children – decisions dealing with money, property, healthcare, and other aspects of the child’s welfare. Although state specific rights vary, spouses are also granted certain automatic rights and privileges under the law for one another. (You can see the Human Rights Campaign website for additional information.) But what happens when the situation is not straightforward?
Rights for Children
A child may have a guardian appointed as a caretaker for a variety of reasons if the parents are unable to care for them. In Florida, guardians can be appointed for the child’s person or the child’s property, each with distinct rights to protect. A guardian for the child’s person will be able to make healthcare, schooling, housing, or other legal decisions relating to the child’s well-being; whereas a guardian for the child’s property would be appointed in the case they are beneficiaries of wrongful death suits, or if they are to receive large sums of money because of personal injury suits, inheritance, or insurance settlements. Often, the minor’s money in this kind of case will be set up in a trust, which is overseen by a trustee, and the trust might include a number of provisions for the child’s benefit and protection. For example, the minor may not be granted access to the funds until a certain date, or may only be allowed to access the money in specific circumstances, such as for college or travel expenses. The guardian of every minor in Florida must be represented by an attorney and proper documentation must be filed with the courts to establish that guardian’s responsibility to the child. The same person can hold both guardianships, but the responsibilities can also be divided. The guardian for the minor’s property and the trustee of their accounts also do not need to be the same person. However many adults are involved, legal assistance is extremely valuable to establish legal relationships for the child’s benefits.
When a child is legally adopted Florida law recognizes that once an adoption is formally completed, the birth parent’s legal rights to make decisions for the minor are officially terminated and the responsibility passes to the adoptive parents with full legal authority – just as if the child was biologically theirs. At the time of the adoption, members of the birth family (siblings, grandparents, aunts and uncles, etc) can petition the court to allow them to stay in contact with the adopted child. If the minor is old enough to choose and they want to keep this contact, they may be granted the right to communicate with biological family members by letters, phone calls, or visits. If the minor is not old enough, the court will decide based on all relevant factors, and may allow this communication if it does not see any disadvantage. The child’s adoptive parents may counter-petition the court at any time if they feel that it is in the child’s best interest to stop this communication with their biological family. Whether the child is communicating with biological family members or not, in case of an emergency, all legal decisions for the child are granted to the adoptive parents without additional legal proceedings or documents needed. See the Florida state statues for adoption here.
Rights for Adults
Guardianship and trusts aren’t just for minors – they can be very helpful and sometimes necessary in certain circumstances for adults as well. When thinking about our own futures, we don’t like to address the idea that there may be a situation where we might not be able to make our own decisions, but establishing who you want to take care of you in case that takes place is a sensible issue to think about ahead of time. If you appoint and designate your own caretakers before an emergency occurs, there will be less legal scrambling if it happens. In the case of a disabled or incapacitated adult, if the individual has not designated their own caretakers, one may be appointed by the court whether or not other family members can agree on a single person. One of the most common ways to assign who will make decisions for you is by granting someone with Durable Power of Attorney. Appointing someone to this position can give them power to make legal and/or financial decisions on your behalf in case you are unable to do so. Two other types of power of attorney, general and limited, will allow someone to make legal transactions on your behalf, but do not extend if you become incapacitated. It is up to you to decide how much power to give your power of attorney when you are filing their paperwork with the state court. You can access form DR835 for a “Power of Attorney and Declaration of Representative” from the FL Department of Revenue here.
Often, people will file durable power of attorney with the decision-making powers of a living will at the same time. As medical technology has advanced to keep people alive longer after extreme injuries, there may be a situation where you need someone to make a decision in the case you are alive but cannot make those types of decisions for yourself. A living will gives your family your express wishes in writing, and tells who has the power to carry out those wishes. A Health Care Surrogate is another option as someone you can appoint and give the authority to make healthcare decisions on your behalf, have access to your medical records, and negotiate with insurance companies for you. You can appoint the healthcare surrogate as the same person with durable power of attorney, or you can delegate that these people work together in your best interests, in case you are not able to speak for yourself. Ideally, everyone should have this paperwork with their wishes written out before any kind of emergency and have a copy kept with their medical records. Copies with lawyers, in safe deposit boxes, or otherwise “hidden away” may not be able to be reached in time to have your wishes carried out appropriately if there is an emergency situation. It is a good idea to give copies of this paperwork to each person you wish to grant some kind of legal authority, but having another copy in your medical file also keeps it in a centralized place and available in case there are any concerns or disagreements.