Early in my legal career, I represented a widow, the mother of three children who were still in the household. The oldest child was a boy of about 16 years of age. The father and husband of this family had been in a tragic accident. The surviving family received a substantial settlement in a “Wrongful Death” lawsuit against the party who caused the accident. The allocation of the proceeds of a Wrongful Death settlement or judgment can be complicated, but generally speaking each family member receives his or her own share of that settlement, as does the estate of the decedent. In my matter, the widow and each of the children had received a separate share. The value of those shares, while not a fortune, was not inconsiderable. Because the children were “minors,” they could not directly hold or control their funds if the amount a child received exceeded $15,000, and it did in this case.
Thus, “guardianship” proceedings were underway with respect to each child. Such proceedings are those in which a “guardian” appointed by the court takes control of the minor’s assets and is supervised by the court until the minor reaches “majority,” which is usually 18 years of age. (At age 18, the child gets his or her funds. Ready or not.) Thus, we had three separate court proceedings in the Miami-Dade County Circuit Court, one such proceeding for each child. The widow was the guardian in each of those proceedings.
Under Florida law, a guardian must ordinarily post a bond to serve as guardian. The premium for that bond can be quite costly and is paid out of the minor’s funds. To avoid that expense and to provide for very close supervision of the guardianship funds, the Miami-Dade Circuit Court usually requires that a guardian place guardianship funds in a “restricted” account with a financial institution. Only a court order may authorize that institution to pay out any of it. Thus, before the guardian could spend any money for the child from the child’s funds, she had to receive the judge’s permission. To obtain that permission, the rules required her to hire a lawyer – she could not approach the judge directly – and that lawyer, before he could approach the judge on the guardian’s behalf, had to prepare and file a petition describing how much the guardian wanted to spend and for what purpose. The lawyer also had to obtain an appointment from the judge’s secretary to present the petition to the judge. (That appointment is called a “hearing.) That’s where I came in, I was the lawyer. I was to present the case for the guardian. My fees would be paid out of the fund for the 16-year-old, provided that the judge thought the petition made by his mother was a reasonable one. If the judge found her petition to be unreasonable, there would be no authorization to pay me.
The boy’s father and his grandfather were both airplane pilots by profession. In fact, flying was a very important tradition in this family and the boy wanted to get his private pilot’s license so that, by the time he graduated from high school, he would have a jump on a flying career. So his mother petitioned the court for permission to pay for flying lessons from her son’s share of the Wrongful Death settlement. She came to the hearing, the boy came, and of course I came.
The judge noted that it is the legal responsibility of parents to educate their minor children, if they are able to do so. The judge reasoned, therefore, that flying lessons were part of that education, and, if the mother thought that flying lessons were important, then she should pay for them out of her own funds. He would not authorize her to pay for those lessons from her son’s funds. (The judge did allow her to pay my legal fees from the boy’s settlement, even though I was obviously a failure as an advocate. The judge did not find the request to be unreasonable, even though he would not grant it.) The hearing took about five minutes.
Outside the court room, the very disappointed mother said that she would, in fact, pay for the lessons herself. Her son knew that in two years, when he turned 18 years of age, he would have his funds under his complete and unfettered control. He said to his mom, then, that he would pay her back when he reached that age. As far as I know, this all worked out as they agreed.
In the case of a Wrongful Death settlement for the benefit of a minor, there is usually no way to avoid a minor’s guardianship. (There are other complications that arise in Wrongful Death actions involving surviving minor children and young adults, but they are beyond the scope of this post.) Guardianships can be avoided, however, in the case of a bequest to a minor from a Last Will. The complication arising from this particular problem with the flying lessons is only one of the many expensive, time-consuming and, perhaps, disappointing complications that can arise in a minor’s guardianship. In most cases, avoid minor’s guardianships if possible. That can often by done by means of Florida’s Uniform Transfers to Minors Act. I will address that Act in another post.