How To Prevent My Child from Becoming a Ward of the Court

How To Prevent My Child from Becoming a Ward of the Court

If something happens to you and you’re unable to care for your children, the court system may step in. Making a child a ward of the court is only a last resort. If you’ve already made other arrangements, the court system would prefer to honor those arrangements as long as they account for your children’s best interests.

What is a Ward of the Court?

A ward of the court is a child who is under the care of the court system. The court monitors the child’s education, healthcare, finances, and other needs. The court may appoint a guardian for the child, or the child may be placed into foster care.

When Can a Child Become a Ward of the Court?

A child can become a ward of the court when their parents are unable to care for them. This can happen involuntarily in cases of abuse or neglect. In an estate planning context, it may be due to the death of the parents or an incapacitating illness or injury.

This process isn’t ideal for the children or their families, so it’s only used as a backup plan. If there are other arrangements, such as a nominated guardian who has the financial ability to care for the child, the court would rather entrust the care of the child to that person under the court’s supervision rather than having the state take responsibility for the child.

What Happens if Something Happens to the Parents?

If a child’s parents suffer a sudden accident or injury, a number of legal processes will begin. If the parents never return to pick up their children at school or some other location, the adults there will try to reach the emergency contacts the parents previously provided. If they can’t reach any family members or friends to take temporary care of the child, they may notify police or child protective services.

While the preferred option is to get the children with someone they know as quickly as possible, that is only a temporary solution. Without prior planning by the parents, they won’t have the legal authority to make important decisions for the children or even to maintain custody without a separate court process.

If there is no one willing or able to take care of the children, they may be brought to a shelter or placed into foster care.

Can a Parent Stop a Child from Becoming a Ward of the Court?

If you’re charged with abuse or neglect, you have due process rights to protect your parental rights and can work with an attorney who practices in that area to maintain custody. If you die or become incapacitated, it’s simply impossible to go to court and fight for your children. Since it’s this latter scenario that you’re trying to prevent through estate planning, the only way to prevent your child from becoming a ward of the court is to plan ahead.

How to Decide Who Takes Care of Your Children

If you want to decide who takes care of your children instead of having a court do it, there are a few steps you need to take.

Update Your Emergency Contacts

Schools, daycares, and anyone else who takes care of your children for the day will usually ask for a list of people who are authorized to pick up your children. This should include who should pick them up in an emergency when you can’t be reached. Your children should also know the name and phone number of a relative or close friend to call in an emergency.

Keep in mind this is just a temporary arrangement. Even if your selected person is willing to care for your children indefinitely, they won’t have legal authority to make decisions for them at the doctor, school, bank, or other important places.

Nominate a Guardian

A more permanent solution is to nominate a guardian. A guardian takes full care of your children with the same authority of a parent. While the court technically selects the guardian, it will honor a parent’s wishes as long as the nominated guardian is suitable. If your chosen guardian lives out of state, you may wish to also nominate a local temporary or backup guardian until the permanent guardian can arrive or your family can arrange for the children to move to the permanent guardian.

Create a Power of Attorney

You can also create a power of attorney for your children. This is similar to a guardianship in that you can grant your selected agent full authority to do anything you could, but it’s more temporary. A power of attorney can help in cases of temporary illness or if something happens to one parent while the other is traveling away from home.

Appoint a Conservator

A conservator is similar to a guardian but only handles financial affairs while another guardian handles everything else. Some parents worry about a guardian misusing assets the parents left for their children’s benefit. While courts do monitor guardians, some financial abuses can go unnoticed by the court if another family member isn’t aware to bring it to the court’s attention. Appointing a separate conservator provides a more direct form of oversight.

How to Provide for Your Children Financially

When courts are reviewing who will care for children, they consider financial means. A family member who you would like to be the guardian may not have the income or assets needed to raise your children. While the guardian generally doesn’t legally have personal liability for childcare expenses, your children do need some source of money in order to not become wards of the court. You have several options to achieve this.

Life Insurance

Life insurance is one of the easiest ways to provide for your children. You can buy a policy that covers your future earnings or what you would have spent to raise them including college costs. You can name your children as beneficiaries, or have the money go into a trust on their behalf.

Will

You can also use your will to leave money to your children. Creating a will is a simple step, but it isn’t without pitfalls. A will has to go through probate, and if you have debts, your creditors may be entitled to repayment before your heirs receive anything. A will also provides the lowest degree of control over how the money you leave is spent.

Trust

A trust with your children as the beneficiary holds assets to your benefit during your life and then automatically transfers them to your children upon your death. Some of the major benefits of using a trust are that you can set it up to hold money until your children reach a certain age or to be used for a specific purpose.

Durable Financial Power of Attorney

You should also prepare for a long-term illness or other incapacitation. Life insurance, wills, and trusts only work after death. If you are still alive, your family will need the legal authority to access your funds to use for your children.

A durable power of attorney kicks in on a triggering event you specify such as your hospitalization. You can give your power of attorney access to your checking account, or you can maintain a separate savings account with funds for your children in case of an emergency. To the extent you have funds available, this guarantees money will be available for your children regardless of your family’s willingness or ability to cover their expenses.

What Do You to With Your Plan?

Once you have a plan in place, make sure the right people know about it. Keep copies of everything with your other important documents, and tell your family where to find them. Anyone you select to care for your children should have their own copies to present to legal authorities if needed.

In addition, give age-appropriate information to your children. This can be as simple as telling a toddler to call grandma if you don’t answer or telling an older child their uncle will take care of them if anything ever happens to you. After a certain age, this can actually be comforting to children who may have seen movies about orphans and have their own worries about becoming wards of the court.

Get Help from an Attorney

Preventing your child from becoming a ward of the court requires proactive planning. To make sure you don’t miss anything and everything will work as you expect, talk to an estate planning attorney at Lilac City Law. Contact us now to schedule a consultation.

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12 Months of Estate Planning: A Plan to Get Your Estate Plan Set up in 2020

12 Months of Estate Planning: A Plan to Get Your Estate Plan Set up in 2020

Estate planning can be one of the most important things you do for your family’s future, but it can also be overwhelming. Between heavy subjects you don’t want to think about, the need to do a lot of paperwork, and everything else going on in your life, it can be too easy to keep putting off your estate plan until later. The problem is you never know when you will need it. Get started before it’s too late by doing just a little bit at a time.

January: Determine Your Goals

Who do you need to take care of? Do you have a spouse that relies on your income? Children that still need an education? Grandchildren that you want to give a head start in life? Charities or other important causes that you wish to support?

Your estate plan isn’t a chore you have to check off to be a responsible adult. It’s something you want to do to achieve your goals. There are many types of estate planning tools available that work best in different situations. To pick the right tools, you need to begin with a plan for what you want to do — just like drawing up the blueprints for a house.

February: Take Inventory

After you know who you want to support, you need to know how you can. What assets do you have? Your home? Cash savings? Investments? A business? Family heirlooms?

When you divide your estate, you may wish to provide some loved ones with financial support and others emotional support in the form of specific items that will mean more to them. It’s also important to understand that if you have any debts, your creditors will take precedence over your heirs, so you need to account for those as well.

March: Create a Will

Wills are the most common estate planning tool because they are the simplest way to ensure that each of your loved ones is cared for in the way that you’ve chosen. You can create a will on your own, but there are some legal technicalities that could leave your will open to challenges or having some of your wishes not honored. An estate planning attorney can help you avoid those complexities. Even if you plan to use other estate planning tools, having a will is still a good catchall for things that may not otherwise be covered.

April: Name Beneficiaries

When you name beneficiaries on your bank accounts and investment accounts, those accounts automatically go to your chosen beneficiaries upon your death. This allows those beneficiaries to receive financial support without having to wait for your will to go through probate.

The main benefit to taking this step is so that any family members who need immediate financial support can receive it. For example, if they relied on your income to cover their living expenses, they may not have enough money to buy groceries or to make rent or mortgage payments on your home that they continue to live in.

May: Consider a Trust

A trust is another way to keep assets out of probate and transfer them directly to family members. Again, the goal is to skip the weeks or months of delays it takes to execute your will in probate.

A trust can also be used to ensure that the funds you leave go towards your intended purpose. You may leave a trust for your spouse’s living expenses or your children’s schooling. You may also restrict your children’s or grandchildren’s access to their inheritance until they are older and wiser and will hopefully put it to good use.

June: Plan for Your Healthcare

In addition to planning for what happens after you’re gone, you also need to have plans for what happens if you can’t make decisions for yourself while you’re hospitalized for a serious accident or illness. Even in close families, family members may disagree about what you want, and doctors may not be able to legally follow their instructions.

To ensure your wishes are honored, consider a living will, advanced healthcare directive, or medical power of attorney. These documents allow you to designate a trusted loved one to make decisions on your behalf with full authority. You can also include any specific treatments or end-of-life options that you want your agent to request on your behalf.

July: Designate a Financial Power of Attorney

Like the person you select to make your healthcare decisions, your financial power of attorney will step in if you’re unable to manage your finances. A full durable financial power of attorney gives your agent the ability to manage your bills and assets if you’re ever temporarily or permanently incapacitated.

You can also use a financial power of attorney when you’re still able to care for yourself to some degree but need extra help with certain tasks. For example, you might sign a limited scope power of attorney allowing a loved one to manage your checking account and pay your bills.

August: Look Into Life Insurance

Life insurance is another tool you can use to provide for your family financially when you’re unable to. Many working people opt to buy a policy large enough to replace their expected future income to protect their spouse’s and children’s lifestyles that were planned around that income. You can also use life insurance to guard against things like medical debts from reducing what you can leave to your family.

As with your other assets, you will need to name one or more beneficiaries in your life insurance policy or provide for the cash value of the policy when you write your will.

September: Plan for Estate Taxes

Estate taxes generally only affect families with multi-million dollar net worths, but you still need to be aware of them. Estate taxes can be particularly devastating when your net worth is mostly in real estate, a business, or other non-liquid assets. This type of situation often forces a family to sell a treasured home or multi-generational business to pay the tax bill. By planning how you structure your estate ahead of time, you can avoid taxes or at least make sure your family will have the ability to pay them.

October: Protect Your Business

In one sense, a business is like any other asset. You can leave it in your will to a loved one, or it can be part of your general estate to be divided up between your heirs.

However, businesses also have to be maintained if they are to continue to provide for your family. The death of an owner or key employee can be highly disruptive to the business and possibly even put it out of business. You should create a succession plan that provides for continuity of operations no matter what happens and that also gradually prepares your loved ones to follow in your footsteps if that’s your goal.

November: Organize Everything

Your estate plan is no good if no one knows about it to put it into action. Keep all of your important documents together in a fireproof safe that your family knows the location of. You may also wish to leave copies with your attorney or in a bank safe deposit box. Again, tell your family.

When you have a medical power of attorney or financial power of attorney, give copies to your doctors or banks in advance. Don’t forget to give them updated documents if you change or cancel your existing plans.

December: Review Everything Each Year

When you stop to reflect on another year gone by, think about how the changes during the year will affect your family’s future. New children may be born, others may grow up and no longer need as much help, and you may have new wealth to consider. While you don’t need to redo your estate plan every year, you should update the relevant portions of it after major life changes so that it continues to meet your goals for your family.

Estate Planning with Lilac City Law

Lilac City provides a full range of estate planning services and can help you develop a comprehensive plan for you and your family. We can help you put it together over the next year or help you get it done even faster. To learn more, contact us now to schedule a consultation.

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What Do I Need to Know about a Power of Attorney in WA State?

What Do I Need to Know about a Power of Attorney in WA State?

A power of attorney gives a loved one the legal authority to handle your healthcare, financial, or other important decisions for you if you’re unable to. This can help you both during major life events when you need extra help or if you’re physically or mentally unable to make decisions on your own.

What Exactly is a Power of Attorney?

A power of attorney is a legal document that grants the named person the power to take the actions you list in the document. Doctors, financial institutions, schools, and others honor instructions from the power of attorney as if they were coming from you. Without this document, they would usually be legally bound to ignore the power of attorney’s instructions even if they believe that’s what you would want.

A power of attorney is not actually an attorney and doesn’t have to be a lawyer. It can be anyone you trust. The name just means they have similar powers to what you might grant to an attorney.

What Does a Power of Attorney Cover?

A power of attorney can cover virtually all decisions, or it can cover one specific action. What you include is up to you. Power of attorney powers might include the following.

  • Healthcare decisions
  • Care of your children
  • Paying your bills
  • Managing your finances, including selling assets or investments to cover expenses
  • Operating your business
  • Making decisions in litigation on your behalf (similar to how you would instruct an attorney rather than the actual legal work)

What Form Does a Power of Attorney Need?

You can find many templates and examples, but there is no specific form to use. The power of attorney just needs to be clear that it’s a power of attorney, name who you’re choosing as your agent, and list the powers you’re granting that person. It’s preferable to have it notarized so that there’s no question about its validity. You can sign in front of two witnesses rather than a notary if you need to.

What is a Durable Power of Attorney?

A durable power of attorney is a power of attorney that lasts even if you’re incapacitated due to illness or accident. Not all powers of attorney are durable. For example, someone working abroad may designate someone to manage their affairs back home without making the power of attorney durable.

A power of attorney that isn’t durable terminates on your incapacitation. To be durable, the form must include your intent that it be durable.

What Do You Do With a Power of Attorney?

Your agent will need to present the power of attorney form to prove that they’re authorized to act on your behalf. You should keep at least one copy for yourself with additional copies located wherever you have copies of your other important documents. This allows your family to be aware of the power of attorney if something happens to you.

Can You Cancel a Power of Attorney?

You can cancel a power of attorney at any time for any reason. You just need to notify your agent. You may also wish to notify anyone that your agent was working with if you wish to make sure they no longer honor your agent’s instructions.

How Long Does a Power of Attorney Last?

A power of attorney might be indefinite, last for a specific amount of time, last until something happens, or only cover a specific action or event. You decide this when you create your power of attorney. No matter which option you choose, you still retain the right to cancel it early.

In the case of a durable power of attorney, it will be in effect from the time a physician or court declares you are incapacitated and last until death. You can cancel it if you recover and are competent to do so.

What Happens to a Power of Attorney When the Principal Dies?

If you die, your agent’s powers cease when they learn of your death. A power of attorney cannot be used to handle your estate even if you try to include that in your power of attorney. You would need to rely on a will or other planning documents.

What Must a Power of Attorney Do?

A power of attorney must act in your best interests. They cannot use your funds for their own benefit. When authorized to make medical decisions, they must follow your wishes as they understand them even if they would choose a different course of action.

What Can’t a Power of Attorney Do?

There are several things that you can’t include in a power of attorney under Washington law. These include several very important medical and legal decisions.

  • Medical: Amputation, shock therapy, life support decisions, or institutionalization. You’d need an advanced healthcare directive instead.
  • Financial: Changing life insurance beneficiaries, modifying a community property agreement, or making monetary gifts unless these actions are specifically included in the power of attorney. Modifying a will or voting in elections can never be included.

What if there is a Disagreement Over a Power of Attorney?

Your agent must follow your instructions, and you can remove your agent at any time. In case of a durable power of attorney where you’re incapacitated, your family can petition a court to invalidate the power of attorney or to force the agent to act in accordance with the instructions in the document.

Is an Out-of-State Power of Attorney Valid?

Most states will honor a power of attorney from another state at least on a temporary basis. If you become a resident of a new state, you should make sure your power of attorney meets the requirements for that state.

What if a Power of Attorney Names Two Agents?

A power of attorney may name one or more agents. If you name multiple agents, they must act jointly and agree on all decisions. You can also allow them to act independently, meaning each can act without input by the other(s), if you specifically state this in your power of attorney.

What is the Difference Between a Power of Attorney and a Living Will?

A living will or advanced healthcare directive spells out what major medical decisions you’d want made on your behalf. These documents are used by your doctors and others to understand your wishes.

A power of attorney’s main job is to designate a specific person you want making decisions for you rather than the specific decisions to be made. While you can limit those decisions in the power of attorney, keep in mind the medical decisions that a power of attorney can never make by law.

What is the Difference Between a Power of Attorney and a Guardianship?

A guardianship has a higher level of responsibility and decision-making than a power of attorney. A guardianship must be approved by a judge, and the guardian must provide periodic updates to the court. A power of attorney only needs the proper forms.

What is the Washington Uniform Power of Attorney Act?

The Washington Uniform Power of Attorney Act was a 2017 law that added safeguards to prevent abuses of powers of attorney. Many of the restrictions and requirements described above were added as part of this act. While you may see references to the Washington Uniform Power of Attorney Act, this is just a formal way of describing the laws that routinely govern powers of attorney.

When Should You Update Your Power of Attorney?

There are several situations where you may need to update your power of attorney.

  • You or your agent have moved, and the distance makes the arrangement impracticable.
  • The agent is no longer willing or able to assume the duties, or you no longer want them to.
  • Your life circumstances have changed and you need to agent to assume different responsibilities.

Do You Need an Attorney to Draft a Power of Attorney?

There is no legal requirement to have an attorney draft your power of attorney. However, a power of attorney confers important legal responsibilities, and you may want to have an attorney confirm that your power of attorney will do everything you want it to with no unintended consequences. Your attorney can also help you avoid technical mistakes that might result in a challenge to your power of attorney. To get help, talk to Lilac City Law today.

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How Should I Plan for Temporary Guardianship in My Family Protection Plan?

How Should I Plan for Temporary Guardianship in My Family Protection Plan?

A temporary guardian assumes the role of a guardian for a limited amount of time. You may need sudden medical care, or if you’re no longer able to care for your children, you may need someone to step in while the permanent guardian prepares to take on their role. To ensure that everything goes smoothly, you should have a plan for this in your planning documents.

What is a Guardian?

A guardian is a person that makes important financial, medical, and other decisions for another. An adult may need a guardian if an illness or injury renders them unable to care for their own affairs either temporarily or permanently. A child may need a guardian if something happens to their parents so that the parents aren’t able to care for the child.

What is a Temporary Guardian?

Unlike many guardianships, which are indefinite, a temporary guardianship lasts for a specific amount of time or until a certain condition is met. Once the temporary guardianship ends, a permanent guardian takes over if one was nominated, other provisions of your estate plan take effect, or your family and a court reach a decision.

Here are some scenarios where a temporary guardian may come into play.

  • You live far away from family including who you would want to be your primary guardian. In the event of a sudden illness or accident, you designate a close friend to handle your affairs until your family member is able to arrive and take over.
  • You need a substitute in case your selected guardian has a change in circumstances that makes them temporarily or permanently unable to fulfill their duties.
  • You are a military spouse and need someone to take over if something happens to you while your spouse is deployed until your spouse can return home.
  • A sudden emergency makes it impossible for you to complete the full guardian nomination process in time.

What Happens at the End of a Temporary Guardianship?

A temporary guardianship only has legal effect for the designated time or until the specified condition is met. At the end of temporary guardianship, it would be as if you didn’t have a guardian at all. If you have the mental capacity to do so, you can extend the guardianship. If you do not have mental capacity and have no other plan in place, the court may consider what the temporary guardian has done so far when deciding on a permanent guardian, but the fact that they were your temporary guardian is not a deciding factor in selecting the permanent guardian.

What is an Informal Guardianship?

You may sometimes hear a temporary guardianship referred to as an informal guardianship. This is because the temporary guardianship may be set up outside of the courts. Often, the informal guardianship is set out in a notarized letter. This is not as strong as a power of attorney or full guardianship but can still be useful in certain situations. One of the most common uses is when a child will be going to live with a relative for a while and the parent will still be able to address any concerns that arise while the relative assumes primary care.

What is a Testamentary Guardianship?

A testamentary guardianship is a guardianship listed in a parent’s will. This is another type of informal guardianship.

It is not possible to legally leave a child to another relative in a will even when well-intentioned and the whole family agrees. The job of a will is to answer questions about property distribution.

What a testamentary guardianship does is simply to make the wishes of the parent known. Courts will usually honor these wishes on a temporary basis if the family is in agreement, but the full guardianship process will need to happen before the guardian becomes permanent.

What is an Emergency Guardianship?

Some people may refer to the temporary guardianship they’ve set up as an emergency guardianship, but an emergency guardianship usually means a temporary guardian appointed by the court. Courts usually appoint emergency guardians when someone has a serious accident or illness and needs a guardian but never nominated one. The court appoints the emergency guardian for a limited period of time to handle the emergency while the regular guardianship process plays out.

What is a Limited Guardianship?

A limited guardianship means the guardian has limited powers. For example, you may wish to appoint a guardian to make medical decisions and a separate conservator for financial decisions. A limited guardianship can either be temporary or permanent.

Do I Need a Temporary Guardianship if I Have a Permanent Guardian?

Even if you’ve nominated a permanent guardian, the court still needs to formally approve the guardianship before it can take effect. Designating the same person to act as your temporary guardian can avoid any ambiguity about what should happen while that process plays out. In addition, you may still need a backup temporary guardian in case the permanent guardian can’t immediately step in.

Do Grandparents or Other Relatives Automatically Become Guardians of Minor Children?

Grandparents or other relatives do not automatically become guardians of minor children if something happens to the parents. They can generally take the children in temporarily as long as there are no objections from the rest of the family, but their authority to make decisions regarding school, doctors, etc. would be limited to emergency decisions only. In addition, any disputes between family members about what should happen could be disruptive to the children’s lives during an already difficult time.

What if the Parents are Divorced?

A temporary guardianship or other arrangements can’t override the other parent’s parental rights. Generally, both parents would need to agree to a temporary guardianship. For example, both parents may want to jointly make a plan in case something were to happen to both of them.

Otherwise, courts would generally look to one parent to take over if something happened to another. For example, if two divorced parents with joint custody lived in the same town and one was hospitalized, the child would usually go to live with the other parent rather than a temporary guardian appointed by the one in the hospital. If they lived far apart, a temporary guardian might come into play while travel and other arrangements are made.

Should Children Know About Temporary Guardianship Plans?

Depending on their age and maturity, it can be a good idea to let children know your plans for a family member to take care of you and/or them if something were to happen. This allows you to gain their input and can also ease fears they have about being orphaned that you may not even be aware of.

What is a Temporary Guardian’s Financial Responsibility?

You generally maintain financial responsibility for yourself and your dependent children even when you’re incapacitated. The temporary guardian may have the right to use your funds to further your and your child’s interests. This would be subject to any financial planning documents you have in place.

To make this process easy and avoid burdening the guardian, you should account for this in your planning documents. You may wish to set aside specific funds or make sure your guardian will have access to your checking and savings accounts.

Can a Temporary Guardianship Be Terminated Early?

If you have sufficient mental capacity to do so, you can terminate a temporary guardianship you established for any reason. A family member or other interested person may also petition a court to end a temporary guardianship. They may believe that you were not of sound mind when you established the guardianship or that the guardian isn’t fulfilling their duties. The court would then make a decision that it believes is in the best interest of you and/or your children.

Do I Need a Lawyer for a Temporary Guardianship?

Even though you can set up an informal guardianship on your own, working with a lawyer helps make sure everything is in the proper form so that it can take legal effect. Your attorney can also help you build in the necessary financial and other arrangements into your family protection plan. To learn more, contact Lilac City Law today.

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What to Know During the Guardianship Nomination Process

What to Know During the Guardianship Nomination Process

If something happened to you and you were unable to take care of yourself or your children, who would step in? Ideally, it would be someone you chose. Nominating a guardian before something happens allows you to do just that.

What Is a Guardian?

Think back to school forms asking for a parent or legal guardian. A guardian is a person who takes care of someone else when that person is incompetent to handle their affairs on their own. This could be due to a serious injury or illness. When minor children are involved, they may need a guardian if both of their parents are incapacitated or pass away.

A guardianship will generally cover similar decisions to what a parent could make for a child — even when the person needing a guardian is an adult. This may include medical decisions and, for minors, other life decisions such as where to go to school.

Guardianships can also cover managing the person’s finances, but finances are sometimes broken up into a separate conservatorship. Exactly what a guardian or conservator can do will be spelled out when the court approves the guardianship or conservatorship.

How Is a Guardian Different From Godparents?

When your children were born or shortly after, you may have appointed godparents. Godparents are often expected to step in and take charge of the children if something happens to a parent, but appointing a godparent is largely a religious or ceremonial action. Godparents aren’t directly recognized under the law.

To give a godparent the legal authority to act, and avoid conflicts with other family members who may wish to step in instead, you will need to go through the legal process of appointing the godparents as guardians, trustees, or other legal roles.

How Is a Guardian Different from a Power of Attorney?

A power of attorney might grant all of the powers that a guardian can exercise. The difference is mainly timing. You sign a power of attorney when you have full mental capacity. A guardian is only appointed after you’re incapacitated. Part of the guardianship appointment process can include reviewing the wishes you specified when you still had full mental capacity. However, a power of attorney cannot be executed if you have diminished mental capacity, and it may be voided if a court finds you lacked capacity when you signed it.

Because a power of attorney can be limited in scope based on how you had your lawyer word it, it may not cover all of the actions that need to be taken on your behalf. In those situations, a guardian would be appointed to fill in the gaps.

How Do You Select a Guardian for Yourself?

Like a person dying without a complete will, the law has default rules for how to select a guardian based on relationships and willingness to serve. The court will also consider the ability to do the job of each person who wants to be the guardian. This can lead to serious family conflicts and large legal bills when two family members wish to serve as the guardian and can’t come to an agreement.

To avoid these types of problems, you can nominate a guardian. The judge isn’t bound to follow your nomination but will give it great weight and will only overrule your nomination with a strong cause. The process is called nomination of guardian, and you can select any adult of sound mind. Like a will, the judge will review your selection to ensure you were mentally fit to make the decision and weren’t under duress or tricked into doing so.

How Do You Select a Guardian for Your Children?

The process for nominating a guardian for your children is similar to nominating a guardian for yourself. The only real difference is that it’s even more important to make your decision in advance so that your children can have a sense of stability and not be left hanging during long court battles.

You should, of course, also talk to potential guardians to see if they are willing to take on this responsibility. However, being nominated does not obligate the person to accept the judge’s appointment if the time ever comes. Therefore, you probably want to select at least one alternate.

Do You Need a Guardian If You Left a Trust for Your Children?

You may have set up a trust to provide for your children financially in case something happened to you. The trustee is then able to manage their financial affairs in accordance with the trust.

However, someone still needs to take custody of the children to manage their daily lives and important life decisions. This is where you need to nominate a guardian, and your estate planning documents should lay out the responsibilities of both the trustee and the guardian.

Who Supervises a Guardian?

Once appointed, a guardian must make regular reports to the court. This includes financial information as well as other major decisions. Other family members can also go to court to contest the guardianship if they believe the guardian is doing something improper.

What If There Is a Conflict Between a Guardianship and a Power of Attorney or Trust?

There should be no conflicts with a guardianship and power of attorney or trust because the court should appoint the guardian in consideration of other estate planning documents. The guardian should only carry out duties not already provided for. To avoid confusion, you should attach your other estate planning documents to your nomination of guardianship to ensure that the judge will be aware of their existence. If a power of attorney or trustee believes a guardian was appointed improperly or is going beyond their role, they can contest those actions in court.

Are There Downsides to Being a Guardian?

Whether a guardianship is for an adult or minor children, being appointed as a guardian is a major responsibility. Like a parent, it can mean making tough choices and sometimes needing to put the other person’s wellbeing before the guardian’s own. The nominated guardian will also need to go to court during the nomination process and will need to make ongoing reports to the court as long as they remain guardian. Being a guardian is a lifetime appointment unless the judge appoints someone else.

Does a Guardian Have to be Local?

A guardian can theoretically live anywhere in the world. However, the judge will want to make sure that the guardian will be able to effectively perform their responsibilities without being unduly impacted by long-distance. For minor children, since they will often go to live with the guardian, the judge may also consider how a move would impact their lives and their access to other family members. You can and should include your wishes on these issues in your planning documents so the judge can understand the choices you made and to avoid conflicts between family members.

If you’re relying on a long-distance guardian, you should also consider who will act in a sudden emergency such as you being rushed to a hospital. You may want to have an alternate power of attorney that gives a more nearby family member the power to act until your guardian is able to step in.

Who Pays for Legal Fees During Guardianship Proceedings?

Your appointed guardian should understand that they don’t have to take on legal costs. If you have liquid assets, the court will pay the attorneys reasonable fees from your funds — just like any other of your expenses would be handled. If you don’t have liquid assets, there is a special guardianship fund established by the government. In no cases does the appointed guardian pay for court fees, although you may wish to set aside money to cover other expenses they may face while acting as a guardian.

Please note that this is separate from creating your nomination of guardian documents. Those costs would be arranged between you and your attorney just like any other legal work.

How Quickly Can a Guardian Be Appointed?

Even for a nominated guardian who isn’t contested, the court process is usually measured in weeks if not months. During an emergency situation, your family could petition the court to appoint a temporary guardian pending full court review. This person could potentially be the guardian you nominated.

In more urgent circumstances, such as an emergency room doctor needing an immediate decision, any power of attorney or living will documents that you created and are readily available will be used. Otherwise, the hospital or other entity would attempt to contact your next of kin and follow their authority in accordance with local law.

Talk to an Experienced Estate Planning Attorney

To learn more about how nominating a guardian fits in with your estate planning strategy or to start the nomination process, talk to an experienced estate planning attorney at Lilac City Law today.

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What Are the Duties of a Guardian?

A guardian is appointed by you or a judge to make sure your children are adequately cared for if you pass away or no longer can perform your duties.

In essence, it is up to them to provide the child with the same necessities and privileges that they would expect to receive if you were still present in their life.

In most cases, appointed guardians are family members who already have an established relationship with the child, but close family friends can also be a good choice.

Regardless of who you would choose to take over short term guardianship of your children, or even permanent guardianship, there are several things you will need to think about in selecting someone appropriate.

Your Guardian should Provide Proper Care for Your Children

One of the primary tasks assigned to a guardian is to provide proper care to the child. This responsibility includes making sure that all of their medical needs are met (physically, mentally, and emotionally).

A guardian will be in charge of maintaining your child’s basic well-being, including activities that further their development and growth, including sporting events, extracurricular activities, and other events that provide the child with the same type of experiences that they may have received if you were present.

The terms proper care and maintenance commonly refer to all activities or practices that are employed during the raising and caring of a minor child.

A Guardian Needs to be Able to Provide the Necessities

A guardian is also charged with providing for all of the child’s necessities. These necessities include providing food, shelter, clothing, and any other items that may be needed. Of course, most people consider a loving home and ample opportunities to succeed as necessities as well.

If the appointed guardian cannot provide these things themselves, they must find a home that is suitable to offer those in their care. This can be a facility or the home of a close family member who knows the child and is willing to take on the responsibility of raising and caring for them daily.

In many cases, the guardian that is named by the parents (or appointed by the court) will personally take on the task of raising and caring for the child.

A Guardian’s Duty: Meet Educational Requirements

One of the most important parts of a guardian’s duties is to ensure that the child’s educational needs are met. These educational needs include both attending school and other extracurricular activities that are associated with the learning process. They can also involve hiring tutors and providing instruction in various forms outside of a school setting such as piano/guitar/violin lessons or athletic training.

It is up to the guardian to ensure that the child is offered the opportunity to attend secondary school and learn a trade or profession that allows them to become self-sustaining and successful adults. A guardian’s duty in this aspect is not fulfilled until the child becomes an adult and can legally care for themselves under the scope of the law.  Essentially, the guardian would support the child’s education needs as if they were their own child.

Work with a Reputable Attorney to Protect Your Family

If you have a minor child or children, it is essential that you take the necessary precautions and include specific instructions as to how your child is to be cared for and by whom if something were to happen to you.

At Lilac City Law we will help you make the best possible decisions when it comes to choosing the right guardian for your child. We will explain the duties that a guardian is expected to perform. We will also go over the full scope of your kids’ protection planning. 

Do not leave the future of your family up to chance, start planning ahead, today!

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Temporary Guardianship-Who Will Step in If You Can’t Be There?

Most parents have a plan in place for seeing that their children are cared for if they die.

What is often overlooked is what will happen to their children should they become temporarily incapable of caring for them and only need someone to step in and take over parental duties for a short time.

Short term care, or Temporary Guardianship, is especially important for a number of reasons.  One situation that this is important for is if you are a single parent and your child’s other parent is not in the picture or is unfit to take over their care.

Or if either or both parents travel a lot, and the other one works full time.  If something happens, who will temporarily have the ability, rights, and knowledge to make decisions on your children’s behalf?

Having a temporary guardianship plan in place before it is needed will save time and upset should a situation arise in which it is required.

Read on to discover what temporary guardianship is, how to determine who you want to have this guardianship, and why it may be necessary.

What Is Temporary Guardianship?

Think of temporary guardianship as substitute parenting. Most temporary guardianships last up to six months, but they vary depending on the time you and the guardian agree upon. Temporary Guardianship is not signing over your child permanently.

The temporary guardian will have all the decision-making power you currently have as a parent. They will decide what school your child attends, take them to the doctor, and make all other significant decisions.

You can limit what decisions they can make by listing restrictions in the paperwork, but doing so may not be logical if you are nowhere around to make those decisions.

Go into a discussion about temporary guardianship with the idea that the person you choose will be your child’s parent in every aspect during the time the temporary guardianship is active.

Why Might I Need to Appoint a Temporary Guardian?

The most often stated reason for needing a temporary guardian is when neither parent is physically able to care for the child. A temporary guardianship may happen due to something like a car accident or illness that requires an extended hospital stay. These types of contingencies can be especially necessary for single parents.

Single parents who cannot depend on the child’s other parent to be there are most likely to need to find a safe place for their child during these times. If there is no plan made, the state may step in and assign someone the duty of guardianship. This guardian could be a family member that you do not want raising your children or a foster home where they will be with strangers. 

Some parents find themselves unable to care for their child due to situations involving mental health issues or a drug or alcohol addiction. They may need a temporary break to enter rehab or another hospital. In these cases, you will need to make it very clear about how long the guardianship will last and what the terms of reclaiming custody involve.

These are situations in which the wrong choice for a guardian can end up getting the law involved, and it will put you in a position of having to prove you are capable of caring for the children. 

In still other instances, a parent or parents may find themselves in a situation in which they cannot financially care for a child.

For example, a single mother may find herself out of work and being evicted. Rather than face having her children live homeless on the streets or go hungry, she may sign over temporary guardianship to a family member or trusted friend until she can provide appropriately for the children.

How Do I Go About Choosing a Temporary Guardian?

One of the first things you need to consider is who is a regular presence in your children’s lives. Having you gone for an extended period will be difficult, and it is essential that they know the person they are left with. Be sure you understand what the person is like and that you can trust them to treat your children well and be a good role model.

Next, discuss the matter with the person. Not all people will be willing to take on this kind of responsibility.

Then, you need to create an agreement that has to be signed by both you and the temporary guardian. If any child is over fourteen, they may also be required to sign the paper.

There are many places online where you can find pre-made forms that need to be filled out. Alternatively, you may write one yourself.

Be sure to include as much information as possible, including dates that can be filled in when the time arises.

Finally, have the paper notarized and ensure both parties have a copy.

Final Thoughts

Having to turn over the critical decision-making for your children is never an easy decision. Knowing that someone will step in and continue to follow your plans and care for your children as you would help make the time less stressful.

Setting up temporary guardianship can be done quickly, without legal involvement. If, however, you have questions or would like to be sure you have covered all the legal loopholes in the process, give our office a call.

We will be more than happy to talk with you and help in any way possible to get you through this important process.

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When Granting Guardianship to a Family Member Is a Bad Idea

One of the most challenging things parents have to consider is that they may one day need someone to step in and take over the job of raising their children due to an unexpected accident or illness.

Courts typically grant guardianship of children to the surviving parent. But what happens if you are a single parent? Or both parents die or become incapacitated at the same time?  Or if one parent is unfit? 

In these cases, the courts will start to look to family members unless you have taken steps to grant guardianship to someone else.  Depending on how your family dynamic is, this might cause a great deal of anxiety! 

In fact, in some families, granting guardianship to any family member might not be a good idea!

Here are several circumstances that would make family members a poor choice to raise your children.

Your Family has a History of Abuse

Not everyone grew up in a loving family. If you grew up in a family in which you were abused in any way, you likely do not want to put your children into the same kind of situation.

If there was/is regular alcohol abuse or drug use this perspective might also be true. Children become at risk when they are left to fend for themselves because the adult who is supposed to be in charge is a victim of addiction.

We are discussing family here, but it is important to consider the family of ex-spouses or the exes of those who might gain custody of your children.

When you have a list of the family that absolutely should not have custody in any way of your children, you will want to gather any paperwork that proves your reasoning for not wanting the courts to give them guardianship.

Keep a copy of these papers with your essential paperwork, provide a copy to the person you want to have custody, and if you have a lawyer, make sure they also have a copy.

Adopting Your Children Would Create a Financial Hardship

Sometimes family members would willingly step up and take care of your children. Raising kids is, however, an enormous financial responsibility.

Unless you have a great deal of money, you can set aside to help pay expenses over the coming years, adding even one child to an established family may cause a financial burden. If you have several children, this makes it extremely difficult.

You do not want to put your family members in a position that will make it hard for them to provide for their own needs and that of their children while also providing for yours.

These people may be willing to try, and they may even be considered good choices as temporary guardians until a permanent one can be found.

Think about the custody of your children in financial terms may seem hard when it is their safety in question, but it is a practical matter that cannot be overlooked. 

And if you plan early enough, you might be able to set up a trust or will to help alleviate any financial burden your family would have from your untimely death.

Your Family is Unwilling or Unable to Adopt Your Children

Your parents raised you and any siblings. They may have been wonderful parents and given you all the love they had, and you might think they would make the perfect choice for granting guardianship.

Take time to think this through. First, they are older than you. It is likely that time has created a situation in which they are no longer physically able to keep up with the rigors of raising a child.

They may also be getting to the age at which they will not be around long enough to see your children to maturity.

You likely want to avoid a replication of the trauma and uncertainty that led your children to need new parents to raise them. 

On the other hand, maybe you have no family members who are willing to step up and take over: Your parents are enjoying their retirement, your siblings have lives of their own that they do not want to upset, or there may be other reasons.

Whatever the case, you do not want to choose someone who would refuse the responsibility and leave the care of your children up to a court or foster system.

We Can Help

Choosing the appropriate person for granting guardianship is a process that takes time and a lot of thought, as well as communication with them.

If you would like help making sure your final wishes are set down correctly, contact us.

Our knowledgeable lawyers will gladly answer all your questions and help you reach the place where you feel comfortable with your final guardianship choice.

We will gladly help you with this, and any other matter pertaining to it by making sure your estate is in order and your children are cared for by the person you feel will raise them as you would.

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Keep Your Assets Safe: How to Protect Yourself From Lawsuits

You have worked hard to have everything you own. That is why you cannot just leave your assets open to seizure in lawsuits or debts. You have to protect them.

Each year over 40 million lawsuits are filed in the United States, many of them seem frivolous. However, many of these frivolous lawsuits end with the plaintiff receiving millions of dollars in payout.

Lawsuits like these can be brought against you!

If you have a significant amount of assets that are unprotected you need to secure them now.  Here are some of the best ways to protect your assets from lawsuits.

Get Insurance

Making sure that you have insurance is one of your best defenses. Always ensure that you have enough coverage for each of the following:

  • home
  • vehicles
  • life
  • health
  • business

The minimum that is required by most states is usually not enough should a lawsuit be brought against you. You must ensure that you go beyond the minimum amount set by your state of residence so that you have enough to cover your assets if someone sues you.

In addition to the regular types of coverage discussed you may want to consider getting an umbrella coverage policy. Umbrella coverage is an extra layer of protection that will come in handy in case your regular coverage does not provide enough coverage in a large lawsuit.

Get Your Business Incorporated

One of the best steps you can take to protect your business is to get it incorporated.  It is more likely than not that that legal action will come against your business rather than you (playing the odds here).  However, this is not a steadfast rule as the determination whether to litigate against you or your business are wholly separate decisions for any potential plaintiff. 

The crux of this idea is directed at people who run small businesses (or home-based businesses).  When you turn your business into a legal entity (like an LLC) you can protect your assets should someone bring a lawsuit against your company.

You should connect with a business planning attorney to go over all your options.

Take Out A Retirement Plan

A great way to protect your money is to take out a retirement plan. If your assets are held in a 401(k) retirement plan, they are protected from legal action.

Check your state laws to get the details. However, generally speaking, most courts have ruled that funds held in a retirement plan cannot be touched by lawsuits.

Establish an Irrevocable Trust Fund to Protect Your Assets

When you establish an irrevocable trust your legal assets can be protected from any challenges presented in a lawsuit. 

The jist of this strategy is that the trust becomes a separate legal entity (from you and your family) and it would not be affected should a lawsuit come against you. 

This means you can protect your children, or other family members that you want to inherit your assets, from being potentially left penniless if a serious lawsuit is brought against you – or your desires as to where your assets should go were to be challenged after your death.  

Final Thoughts

If you have a significant amount of assets then it is in your best interest to protect them from lawsuits that can wipe them out. There are several ways in which to protect them.

You can get a retirement plan or insurance. You can also protect your assets by forming a corporation or LLC. Finally, one of the best ways to protect your assets is to create an irrevocable trust.

If you would like more information on how to legally protect your assets, please contact us.

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What is a Meretricious Relationship?

While a great number of relationships will split up between their first and second year, many will persist for many years or even decades.

If both parties can not agree or do not believe in the traditions of marriage, they might still be regarded under the law as in a meretricious relationship (definitions and terminology vary depending upon the state of residence).

Here is everything to know about whether or not your last relationship could be considered to be meretricious.

What Is a Meretricious Relationship?

Some people live together for years without getting married. As our society’s concepts of relationships, marriage, and commitment change, we need laws to accommodate our lives and recognize the bonds we make. Without having been married by the state, two people can typically still be considered married in many legal situations.

This is when a relationship is called a meretricious relationship, or a similar term, and considered a legal entity by the state.

Not every state recognizes this situation by the term meretricious. Some states call it something different like a “cohabitation” agreement.

If you have never been married but live with a partner and share intimate moments of your life, property, and finances, with them, you’re probably in a meretricious relationship.

Defining Your Relationship Is Tricky

Many factors determine whether or not you are in a meretricious relationship and they can feel relatively nebulous.

One item that demonstrates a marriage-like relationship is simply the length of your commitment. If you’ve got documentation that can show when you started dating or living together, you will be able to prove this should your claim to assets or support ever come into question.

Breaking Up Is Hard To Do…

If a court of law can find that you and a former partner had a meretricious relationship, then any property related to the relationship could be split if desired (or if contested).

These things could include but are not limited to your actual money, assets, your home, and any vehicles you drive. They could even include custody for kids.

So What Do You Do Now?

We are not here to give you relationship advice. However, we can help you and your significant other to set up your estate and family protection plans to take into account the nature of your partnership. Whether you choose not to wed by choice, or you have not been allowed to due to the laws where you live, we know how to prepare you, financially and legally, for the stresses and challenges to come.

Do not let the nature of your relationship be the reason you do not reach out for help in planning your future together!

Contact Lilac City Law for Estate Planning Help

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