Which is Better? Power of Attorney or Guardianship?

Which is Better? Power of Attorney or Guardianship?

When you have a loved one that needs assistance making major life decisions, whether they are financial or medical, you may find yourself wondering whether or not it is better to obtain a power of attorney or guardianship to help assist them with these matters. Which one will provide you with the best chance to take care of their needs? To make the decisions, you will first need to understand what each one is and how they differ.

Power of Attorney

A POA, or power of attorney is a document that will give a person the power to act on the behalf of another individual. Power of attorney documents can differ greatly, with some providing the agent of the POA with broad legal authority over their life and others, creating the authority to make limited legal decisions, often related to medical care, finance, property, or both. This type of authority is often used in situations where someone becomes ill, disabled, or incapacitated and cannot make decisions on their own behalf. In some situations, a power of attorney can be used when an individual cannot be present for a major financial transaction, such as purchasing a car. 

A power of attorney can is designated by the individual who needs assistance and can end for any number of reasons. The individual who a power of attorney is for can revoke it at any time, or the court can render it invalid. There are also life events that can dissolve a power of attorney, such as the event of a divorce when the spouse was the agent, or in the event the individual passes away. The dissolution of a power of attorney can differ depending on the type of POA obtained as well. In a conventional power of attorney, the document will become invalid once the individual is declared to be incapacitated. If a durable power of attorney has been obtained, then a power of attorney can continue even after incapacitation. 

Power of attorney documents should be considered when planning long-term care or for individuals who may be disabled physically or mentally. When choosing a power of attorney, you will need to determine whether a general power of attorney will be needed or a limited one. Which one you choose can depend on the capacity of the individual the power of attorney is being obtained for. A general power of attorney will allow an individual to act as an agent for all matters allowed by the state and can include selling property, handling bank accounts, signing checks, and making medical decisions. A limited power of attorney will be desirable when an agent is needed for specific matters or events, such as handling property or managing a retirement account. Limited power of attorney is typically only granted for a specified period of time. 

Guardianship

Obtaining guardianship, or conservatorship, is a legal process where a person is awarded the decision-making capacity over an individual who is unable to communicate their decision or lacks the capacity to make sound decisions often due to a mental disability. It can also be awarded if a person is considered to be susceptible to undue influence or fraud. When a guardianship is granted, many rights from the individual are removed, such as their right to manage their finances, medical treatments, and where they choose to live. Because guardianship can significantly limit a person’s rights, it is usually considered a last resort and is not taken by the court system lightly. In order to obtain guardianship, a court will have to strongly feel that the individual cannot make their own decisions, and it is in the best interest of the individual to have someone put in place to make these decisions. While an individual can request a guardian choice before they become incapacitated, the court will have the ultimate decision in who they appoint. They will give weight to an individual’s request as long as that person can perform the guardian function and act in the individual’s best interest. 

How Does a Power of Attorney Differ From Guardianship?

While both a power of attorney and guardianship are designed to provide an agent with the ability to make decisions on your behalf, the primary difference between the two is that you will choose the agent for power of attorney and what actions you want them to take on your behalf, while guardianship is a court-appointed position. The individual receiving guardianship will be able to make all decisions on your behalf, instead of limited ones that may be outlined in a power of attorney. Another difference between the two is the fact that a power of attorney can be dissolved by the individual requesting it, where a guardianship will have to be dissolved by the court. One of the final differences between a POA and a guardianship is that when the court appoints a guardian, they can choose to appoint an independent guardian instead of someone that is related to the individual. 

Determining whether to choose a power of attorney or guardianship will largely have to do with the ability the individual has to make decisions on their behalf. In the event that the individual still has enough of an ability to understand and participate in the decision-making process, they may wish to choose a power of attorney. This will provide them with someone to help them in making decisions but will make them part of the decision-making process. It is also advisable to obtain a durable power of attorney so that the same individual can aid in decisions in the event incapacitation occurs. If an individual has already lost their ability to make confident and safe decisions on their behalf, then a guardianship situation will work best. 

Another important thing to note is that if a durable power of attorney is in effect when someone becomes incapacitated, then a guardianship is not necessary. So if you wish to have a say in who will be appointed your decision making capability in the event you become incapacitated, then having a durable power of attorney in place may be the best course of action. 

Pros and Cons of POAs and Guardianships

There are advantages and disadvantages to both options, and it is important to understand the difference before making any decisions so that it can be ensured that the wants and needs of an individual will be met and in accordance with their wishes. One drawback to a power of attorney is that it will need to be established well before it is needed. Once an individual is deemed to be incapacitated, a durable power of attorney cannot be established. So if a power of attorney has not been established then a guardianship will be needed for decisions to be made on an individual’s behalf. Another possible drawback of utilizing a power of attorney is that it will give the friend or family member who you assign as your agent, significant control over your life.

Choosing a guardianship also comes with some disadvantages as well. The first being that the process involves the courts. The court process can be lengthy, and an agent will not have the power to make decisions on an individual’s behalf until the process is completed. Additionally, the court may decide that the person seeking guardianship is not equipped to act in the individual’s best interest, and someone else may be appointed who was not someone that the individual would originally desire. 

After a guardianship by the court has been established, the court will continue to oversee the process, which can be both a pro and a con. It can be good for the fact that the individual will remain protected at all times, but it can be a con due to the fact that it intrudes into private family matters, With a durable power of attorney their will be no oversight, but an agent can be held in breach of duty, and legal action can be taken if they fail to perform their duties properly. 

Deciding whether to choose a durable power of attorney or guardianship can be a difficult decision, and one that involves weighing the pros and cons of each action. In any event, seeking out knowledgeable legal counsel will help you better understand the process that goes into obtaining each, what responsibilities each require, and which one will be in the best interest of your loved one.

Need help deciding, or are you ready to begin the power of attorney or guardianship paperwork? The professionals at Lilac City Law can help. Contact us today to set an appointment for your consultation. 

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How Important is a Living Will in a COVID19 Emergency?

How Important is a Living Will in a COVID19 Emergency?

The COVID-19 pandemic has completely changed the world as we know it. This virus has already claimed the lives of over 50,000 Americans, and unfortunately, it doesn’t look like the threat is going away any time soon. 

No one ever wants to think about what would happen if we were to become so critically ill that we couldn’t communicate our wishes. However, the possibility of this happening is more real today than ever before. As coronavirus cases continue to mount, doctors, attorneys, and financial advisors are all urging every American to ensure that they have created their essential legal documents, including a living will. 

What is a living will, and why is it so important right now? Here’s what you need to know. 

What is a Living Will?

First things first – a living will is a legal document that explains your personal choices about the procedures and medications you want (or don’t want) when it comes to end-of-life treatment. This document is often the only way for a person to communicate their wishes, as they may be unconscious or under anesthesia when the time to make the decision arises. 

It’s also important to understand what a living will is not. It’s not the same as a medical power of attorney (also known as a healthcare proxy). This is a document gives someone else the power to make medical decisions on your behalf. Many people choose to create both a living will and a healthcare proxy. 

What’s Included in a Living Will?

Your living will should include a summary of your wishes when it comes to the most common types of medical treatments. This often includes:

  • Cardiopulmonary resuscitation (CPR) – resuscitation if your heart stops beating.
  • Mechanical ventilation – intubation if you’re unable to breathe on your own.
  • Antibiotics or antiviral medications – aggressive medical treatment of infections.
  • Dialysis – treatment for kidney failure
  • Tube feeding – nutrition and fluids provided intravenously or through a feeding tube placed in your stomach.
  • Comfort (palliative) care – this can cover a wide array of pain management and comfort interventions at the end of life. Some examples include avoiding invasive tests and treatments and being able to die at home.

For each of the items listed above, your living will should indicate whether you want to receive the treatment, and, for treatments like dialysis and tube feeding, how long you wish for it to continue. 

Your living will may also address whether you want to be an organ or tissue donor and if you would like to donate your body for scientific study after you die. 

When Does a Living Will Go into Effect?

If you have a living will in place, it’s important to make sure that your doctor has a copy so it can become a part of your medical records. If this hasn’t happened, you or someone else can also provide a copy when you arrive at the hospital or at any point up until the decisions have been made. 

For a living will to go into effect you must (1) still be alive, (2) be incapacitated or otherwise unable to communicate, and (3) be in terminal condition (unlikely to recover). It’s also important to note that a living will overrides a medical power of attorney (POA). This means that if the person you’ve designated to make medical decisions on your behalf wants something different from what’s written in your living will, their request will be denied. 

Why a Living Will is So Important During COVID-19

A living will is an important document that everyone should have in place. Accidents and illnesses happen all the time, and having this document in place gives you extra peace of mind. However, during this COVID-19 crisis, it becomes even more critical. Here are a few reasons why. 

The Threat is Very Real

Unfortunately, no one is safe from this virus. There are documented cases in every state in the country, and it can affect people of all ages. Since the virus is often carried by people who don’t have any symptoms, you never know when you could be exposed. 

Many people put off creating important documents like this because they’re young and healthy and don’t see a need for it. Others don’t want to think about the possibility that they could become critically ill and possibly die, so they avoid the topic entirely. However, now is the time to face the fact that this threat is very real. 

It’s well known that COVID-19 causes life-threatening respiratory conditions and extended hospital stays. If you’re infected, there’s a very good chance that your healthcare providers will need to make some of these important decisions. You’ll want them to know your wishes when they do. 

Your Medical Power of Attorney Will Face New Challenges

If you have to go to the hospital for coronavirus treatment, there’s a very good chance that your loved ones won’t get to see you in person again until you’ve either recovered or passed away. Most hospitals are not allowing visitors, which will make it much more difficult for the person you’ve designated in your healthcare proxy to make sound decisions. 

Of course, he or she can be reached over the phone and can make decisions based on the information provided by your medical team. However, without being able to see your condition with their own eyes, each decision becomes that much harder. Having a living will on file gives your physicians the proper guidance and can take some stress off of your loved ones. 

Important Coronavirus Considerations 

If you don’t have a living will and a medical POA, now is the time to get these important documents in place. However, even if you do already have them, you may want to consider having them reviewed in light of a few unique circumstances created by the current coronavirus crisis. 

Communication Issues 

While most healthcare proxies give your medical POA broad authority regarding communication, it’s not a bad idea to add language that explicitly allows medical staff to communicate with your POA over the phone, by email, or through video conferencing. This will help avoid the possibility that problems could arise at a critical moment. 

Intubation Decisions 

The second issue is much more serious, and it involves the use of a ventilator. Many patients with severe cases of COVID-19 end up needing to be intubated. This allows a ventilator to provide your body with oxygen when you’re unable to breathe. 

While your living will may state that you do not wish to be intubated, technically this should only go into effect if you’re considered terminal, that is, if the doctors believe there is very little chance that you’ll recover.

In the case of COVID-19, there’s a possibility that you could go on a ventilator temporarily and then make a recovery. This means that the physicians are now faced with making decisions, hour-by-hour, regarding whether a patient who needs to be intubated actually has a chance of recovering. If the chances are slim, this is considered an invasive procedure and would often fall under the terms of the living will. 

On the other side, there’s the concern that you may not receive a ventilator when, in fact, you would have wanted one. This is particularly concerning in light of conversations about ventilator shortages and speculation that rationing could even come into play. It seems that this concern has passed in the United States at this time, but there’s always a chance it could arise again. 

Considering just how critical this issue is – often literally a matter of life or death – it makes sense to add language into your living will to make your wishes clear specifically in the case of a coronavirus diagnosis. This way, you can be 100 percent sure that your legal document reflects your true intent. 

In addition to ensuring that you’ve created or updated your living will and provided a copy to your physician, it’s also a good idea to talk to your loved ones about your wishes. Although this is an uncomfortable conversation to have, it’s extremely important, especially now. 

Create (or Review) Your Living Will Today!

If you don’t have a living will yet, now is the time to do it. It’s possible to create this document yourself using a form provided by your physician or local hospital or online legal document creation software.

If you choose any of these routes, however, you need to make sure you understand your state’s specific requirements. Some require a witness and/or notary, which could present a challenge during times of social distancing. In this case, however, it’s still better to have a document drawn up than to have nothing at all. Due to the extreme importance of this matter, many people choose to have an attorney draw up their documents instead.

Lilac City Law is here to help you should you decide that you need assistance. Give us a call at 509-624-1610 or complete our online form to schedule a consultation. We’ll answer all of your questions and help ensure you have everything you need to protect yourself during this uncertain time.

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Do I Need a Durable Power of Attorney If I Get Sick with COVID19?

Do I Need a Durable Power of Attorney If I Get Sick with COVID19?

With the COVID19 pandemic sweeping across the globe, you may be wondering as to whether or not you have everything you need in order, in the event you were to become ill. Unfortunately, it often takes extremes for many people to realize they may not have the proper protocols put in place in the event an illness or accident renders them incapable of handling necessary decisions.

What Is a Power of Attorney?

A power of attorney provides another individual with the ability to handle certain issues on your behalf. You can have a power of attorney that puts someone in charge of your financials only, your health care only, legal issues, or one that incorporated all three.

What Is the Main Difference Between a Regular Power of Attorney and a Durable Power of Attorney?

A general power of attorney can handle any legal, financial, or medical matters for you unless you are deemed medical incompetent. Limited powers of attorney can be applied, which will be used only for specific situations, such as making a major purchase on your behalf when you cannot be there. For example, buying a ca. 

The primary difference between a regular power of attorney and a durable power of attorney is when it expires. A durable POA can extend the ability of the person making decisions on your behalf, allowing them to continue to make decisions even if you are deemed incompetent. These can be better for dealing with possible medical emergencies where you may be unable to make reasonable decisions or if you suffer from a cognitive decline. 

General Durable Power of Attorney v. Durable Power of Attorney for Health Care

A general durable power of attorney will grant someone the power to represent your wishes on a wide range of legal and business issues and will remain in effect if you have become incapacitated. You can also set it up to only go into effect in the event that you are incapacitated. The person named can be anyone you designate, and they will have the power to perform many actions on your behalf, such as:

  • Buying and selling a property
  • Managing your bills
  • Handling bank accounts
  • Managing investments
  • Filing tax returns
  • Applying for government benefits

A durable healthcare power of attorney is more often used when you are in some way incapacitated and unable to make decisions regarding your care. When this occurs, the person you have appointed with the healthcare power of attorney will be able to communicate with your doctors and help make medical decisions on your behalf. 

What Happens if You Don’t Have Durable Power of Attorney?

In the event that you become incapacitated and do not have a general power of attorney, your family may be required to go to court and have you declared incompetent before they would be able to take over your medical and financial decisions for you. This makes having one in place extremely beneficial and less stressful for your family. 

How to Name or Remove a Power of Attorney

While there are DIY power of attorney forms out there, it is best to speak with an attorney so that you can ensure that you have the right document filed for your particular situation. They can discuss with you your options and help draft a document that will be in line with what you want to happen in the event you are incapacitated. Once the document is drafted, you will need to provide the person you have designated with certified copies so that they can present them when signing paperwork or making decisions on your behalf. 

If you decide that you no longer want a power of attorney, or you wish to designate another person to have that power, you can revoke a power of attorney at any time as long as you have not been deemed mentally incompetent. You will need to revoke the power in writing and should also notify any financial institutions that may have had the POA on file. 

In the event that a family member wishes to override the power of the attorney of another family member, the situation can be more difficult. There are some cases where loved ones may be afraid that someone with power of attorney over their loved one is abusing that position. In this case, it will take legal action for the person’s position to be removed. 

Should the COVID19 Pandemic Be a Reason to Name a Durable Power of Attorney?

With so many uncertainties and how quickly the virus can be devastating for some, having a durable power of attorney in place in the event you come incapacitated with the virus can be a way to ensure that your needs are met, and your personal business is taken care of in the event you contract the virus. In truth, having a durable power of attorney in place in the event of a major accident or medical injury is a wise move, no matter the current situation, but it may be more at the forefront of your mind when a terrible virus is sweeping across the country. 

Reasons to Have a Durable Power of Attorney in Place During the COVID19 Pandemic

There are many reasons to consider obtaining a durable power of attorney in light of the COVID19 pandemic. With a durable power of attorney in place, you will be able to:

Ensure You Have Someone to Communicate With Your Doctors

While many of the coronavirus cases have mild symptoms, when hospitalization is required, it means the patient can become sick very quickly. When this occurs, it can mean that they may quickly become unable to make informed decisions about their healthcare. Having a durable power of attorney will allow you to have someone who can make split decisions on your treatment on your behalf, even over the phone. This can help allow you to receive quicker treatment, that may be delayed by family members arguing about the best course of action. 

They Can Communicate Your Wishes as to Whether or Not You Want Intubation or a Ventilator

Unfortunately, severe virus cases require breathing intervention to allow the patient to get oxygen as quickly as possible The quickest two ways for this to happen is through intubation and the use of a ventilator. While most doctors will advance with these processes unless they believe there is no hope of recovery, traditional directives can be both interpreted and implemented differently during a time of panic. Medical professionals have to make hard and fast decisions when faced with many patients in respiratory distress, and since the virus is novel, they may be unsure of which cases can result in recovery and which will not. 

To ensure that your wishes are heard, you should have an advanced directive as to whether or not you are willing to go through these invasive procedures in an attempt to recover, and have a person with a durable power of attorney to ensure that those wishes are communicated and followed. You can even address what protocols you would like followed in the event you contract the virus, versus other situations. For example, if you wish to have a ventilator tried but don’t’ want to be intubated and put on life support, add that into your document as well. 

Living Wills DO Not Replace POAs

Many people may confuse a living will with a POA. While these can complement each other, the living will not replace the POA. A living will can provide loved ones with your wishes in the event that you have a terminal condition. It does not cover other types of medical treatment, which can occur when you are capacitated, such as dialysis and blood transfusion. To have someone make decisions on your behalf, you will need to have a durable power of attorney for healthcare decisions. 

Choosing Your Attorney-in-Fact

The person who you designate to hold your power of attorney will be referred to as your attorney-in-fact. This person will have access to your financial accounts, legal information, and medical records, and will be able to make decisions for you regarding one or all of these areas, depending on how your POA is set up. Therefore, when choosing your attorney-in-fact, you will need to make sure it is someone you can trust. You will also want to appoint someone who shares your same views and can keep their emotion out of decisions to ensure that your wishes are appropriately followed. If you choose to, you can also appoint more than one person or a person for each facet, such as one for health care, on for finances, and one for legal matters.

Contact Lilac City Law to Set Up Your Durable Power of Attorney

Everyone has different needs and issues, so finding experienced legal counsel to help you draft your durable power of attorney can ensure that you get the type of document you need that aligns with both your wants and needs. Contact Lilac City Law today to schedule a consultation and put your mind at ease during this time of uncertainty. 

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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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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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The Importance of Power of Attorney During Estate Planning

The Importance of Power of Attorney During Estate Planning

Your estate planning has many different parts that all need to move in the same direction in order to be successful. A vital part of this process is how to disseminate the various powers of attorney (POA). The POA will be one of the most important estate documents that you create, so you owe it to yourself to know as much as you can about it. Let’s take a look at just how important the POA is and how it will be used during the estate planning process.

What Is the Power of Attorney?

The power of attorney is the power to organize affairs on your behalf. There are different powers of attorney for different aspects of your life. For the purposes of this text, we will focus most on the financial POA, but there are also medical POAs and others that may apply during the estate process depending on circumstances.

In most cases, a power of attorney becomes effective immediately upon document execution. Contrary to popular belief, powers of attorney are not only for when a person becomes mentally incapable. In many cases, the POA document does not completely remove the power of the principal to manage their or her own affairs. The document simply grants the agent the power to act in place of the principal if needed. If the principal remains mentally competent, he can change the POA by replacing the agent or revoking the power totally.

However, the POA document truly becomes the most important document in the estate planning portfolio if a principal becomes somehow incapacitated or otherwise unable to handle their own affairs.

What Happens Without a Power of Attorney in Place

If a principal becomes incapable of handling their own affairs and has no power of attorney document in place, the family of the principal faces a potentially contentious situation. The POA document is the document on record of the wishes of the principal. Without it, there is no direct claim to the finances that the principal was in control of. Family members may begin to fight over the right to control things, especially if the estate is especially large or there are many valuable assets to consider.

In place of a designated person with the powers of attorney, the affected parties may agree to file for guardianship of the assets and property of the principal that has been disabled. Instead of simply following the wishes of the principal as mapped out in the POA, the family must now go through an often long and drawn-out court procedure.

The Process of Guardianship

During the court process of selecting a guardian, there will usually be a lawyer who is representing the Petitioner. The Petitioner is the individual who is looking to be named as the guardian. The Petitioner and their attorney will need to face, at the very least, an attorney who is in court to represent the rights of the person who has been disabled. No matter how close the family is, this process will likely generate thousands of dollars in legal fees in order to legally appoint the guardian.

Keep in mind also that a power of attorney document that is not clear may trigger this contentious process as well. You need to have the right attorney with the right experience in order to avoid these problems — just having a POA document that is not appropriate for your situation is not enough. A properly drafted power of attorney directly from the principal, while he is competent, is always preferable to a guardianship court proceeding.

Even when a legal guardianship is in place, the court maintains a Big Brother stance over the guardian to supervise the administration of the estate. Guardians are much less free to manage an estate than someone who is appointed through a power of attorney document. Guardians must always get the permission of the court to legally undertake many important assets that involve the estate, including paying the attorney’s fees for the procedure itself.

The court will also require that a guardian file an accounting of the estate on an annual basis. On top of this, a guardian must also file an inventory of the estate so that the court knows every activity that is taking place within the family estate. Having to report everything to the court undermines the very nature of a private estate, and it is much more expensive than a power of attorney transfer of responsibility. In most cases, the oversight of the court means that a family must employ more legal services in order to stay in compliance with regulations.

If you are in this sensitive situation, we can help you through it no matter who you may be up against. Do not hesitate to call us if you believe you have a legal claim to the estate of a family member who has been recently incapacitated.

Having an Effective POA

As mentioned before, the power of attorney that is set up by the principal must be well-drafted and relevant to the current situation. Otherwise, the court may trigger the guardianship process and all of the expenses and legal hassle that comes with it.

What makes a POA document effective during estate planning? Let’s take a look at the characteristics of an effective power of attorney.

  • Listing specific powers and limitations. A good power of attorney will list out the specific actions that an agent can take on behalf of a principal. Among these actions may be paying bills from the principal’s assets; managing those assets; selling all or part of the estate; and setting up various structures to avoid estate taxes. A principal may wish their estate to be used in a very specific way, and this is what the power of attorney should spell out in clear terms.
  • Language in the POA to persuade financial institutions to accept an agent. The financial institutions that did business with a principal are under no requirement to accept an agent, even from a properly worded POA. Many of these institutions now require language that is very specific in the POA to reaffirm that there is no funny business going on. Agents should also be prepared to reaffirm their responsibility, possibly on the financial institution’s proprietary forms.
  • Listing consolidated accounts. As a principal, if all of your accounts are kept spread out, your agent will have a tough time jumping through all of the hoops of the financial institutions want. Every bank is different. Consolidating accounts as you age not only helps to organize your family finances in the estate, but it also makes it easier to manage while you maintain control over them. You may want to list all of these accounts by name in the POA so that each financial institution can be more assured of your agent’s viability.
  • Decide on the type of POA. There are two major types of POAs that you can consider: the springing POA or the durable POA. The durable POA gives the power of attorney as soon as the principal signs it. The springing POA only takes effect in the event of a certain condition, such as the death, disability or incapacity of the principal. The timing of agent powers is a vital part of a POA. Without it, an agent may try to take over a principal’s estate too early and cause contention. Keep in mind that not all states allow springing POAs.
  • Define the conditions of incapacity. The last thing that you want is for someone else to determine when you are incapable of managing your own affairs. In your POA, you can name a medical professional to certify that you are incapacitated before your agent can take any action on your estate. This puts an added layer of protection in your POA, and it also gives your agent a good check against absolute power while you are still capable.
  • Establish oversight. Although your agent may have power of attorney, you can limit this right with certain oversights. The key is to make sure these oversights are written down specifically and fully clear to your attorney, to your agent, to the overseer and to anyone else who is involved in your estate.

Get Help with Powers of Attorney Today

The points above are just a few of the important aspects of the power of attorney document during estate planning. Every plan is different based on the individual needs of the estate. Make sure that you have the right attorney by your side when it is time to draft this essential document. Give us a call or an email with any questions that you may have about the process, or to get things started with your own POA. Time is of the essence, and there is no better time than now to get your affairs in order.

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Who Will Help You Take Care of Your Estate If You Become Incapacitated?

You have provided for and protected your family for many years. However, when your children grow into adulthood, you will still have a legacy to protect.

You will want to make sure that your estate remains a testament to your dedication and hard work and serves the needs of those you leave behind.

But what happens if you are only incapacitated rather than passing away? Incapacitation can happen to anyone at any age, but for those of us in our golden years, becoming incapacitated at some point is all but inevitable.

Unfortunately, there is no one-size-fits-all plan to protect you if you become incapacitated.

That is why it is a good idea to understand all the preparations you can make and services you can access to help protect your estate should you lose the ability to manage it alone — either temporarily or for the long term.

The following is a list of legal provisions and tools you can use to help ensure your estate is taken care of if you should become incapacitated or die.

Last Wills and Testaments

A last will and testament is a legal document that contains the final wishes of an estate holder regarding his or her dependents and possessions.

A last will is written while the estate holder is alive and in a sound state of mind. It names an executor whose job it is to administer the estate and to follow the estate plan.

Should an estate holder die without drafting a valid will, he is said to have died “intestate.” The state becomes the executor of the estate.

There are several legal implications to be considered when drafting your final will. It is best to consult an attorney to assist you in writing your last will in a manner that guarantees your estate is settled following your wishes.

Trusts

A trust is a fiduciary agreement that assigns a trustee to hold specific assets on behalf of one or more beneficiaries. Traditionally, the purpose of a trust is to minimize the tax liability of an estate.

A trust is usually designed to avoid probate, which can compromise the privacy of an estate holder and can be a lengthy and expensive process.

A trust gives you the ability to ensure your wealth is managed according to your wishes — to protect your legacy, ensure privacy, and save money on the probate process.

There are many different types of trusts, each with their features and benefits. It is best to consult with an attorney to help you choose the type that suits your needs.

Health Care Powers of Attorney

If you should become incapacitated, you may be unable to communicate your wishes regarding your health care. A health care power of attorney is a document that designates a specific person as holding the authority to speak for you in matters of health care.

Many people assume they will not lose the ability to communicate should they become infirm, are injured or are otherwise incapacitated. Unfortunately, this is not always the case. A family member, trusted friend or an attorney can be given health care powers of attorney.

Financial Powers of Attorney

Financial powers of attorney are similar to health care powers of attorney except that they concern financial matters rather than health matters.

If you should lose the ability to communicate, they give someone permission to make financial decisions on your behalf.

Other Powers of Attorney

Powers of attorney give the designated holder more than just the ability to speak for you should you lose the ability to communicate. It can also allow the “agent” or “attorney in fact” to access accounts such as a bank account or retirement account.

A durable power of attorney is used for property management and can help alleviate the costs associated with guardianship or conservatorship.

There are several types of powers of attorney, including those discussed above. A lawyer who specializes in estate law can help you decide which is best for your needs.

Guardianship Nomination

A guardian nomination is a document that describes how you wish your minor children to be cared for if you and/or the other parent lose the ability to provide care. It specifies who can be appointed to care for your children and to act as a legal guardian and how care should be given.

Guardian nomination goes into effect after both natural parents lose the ability to provide care.

The dictates of the nomination must be written within the confines of the law for it to be recognized by the court as valid. Your attorney can help you to draft a guardianship nomination that meets the legal standard.

Inheritance

Inheritance is what your dependents receive if you pass away if you have not provided a last will. Inheritance laws differ from one state to the next, and they leave much to the whim of the state.

It is ideal to have a last will to ensure your estate gets settled in the manner of your choosing. However, an estate lawyer can help to ensure that inheritance is dispensed appropriately if necessary.

Heirs

Your legal heirs are anyone who receives ownership or interest in your property, land or hereditaments should you die intestate. In most cases, these are your spouse, children, or other close family members.

Of course, if you do die intestate, the state will take control of your estate and determine who will receive what and how much.

As always, it is better to work with an estate lawyer who will help you draft a last will that ensures that your heirs receive hereditaments per your wishes.

Probate

Probate is the process by which your will is proven to be valid. The validity of wills is decided by a probate court and can be a lengthy and expensive process.

The court’s job is to attempt to ensure that no fraud or undue influence was involved in the drafting of the will. It is possible to avoid probate through beneficiary designations or the use of a revocable living trust, among others.

Working with an estate attorney is the best way to ensure your will is written and delivered in a way that will make it abundantly clear that it is indeed your own and not that of anyone else — or that it was written under some undue influence.

Conclusion

These indispensable parts of your estate-planning toolkit, working together, can ensure that your estate is settled following your wishes. Do not let the state take ownership of your legacy, and do not leave it up to chance. To learn more, get in touch Lilac City Law and secure the future of your legacy today.

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Common Misconceptions About Designating General Power of Attorney

You have probably heard the term “power of attorney” many times. But do you understand what it does (and does not) mean?

Laws differ from state to state, and much of what we hear on the news is about power of attorney cases gone wrong.

Does this mean it is too confusing to understand? Not at all!

What you need is to distinguish the difference between fact and fiction when it comes to a general power of attorney.

In this post, we will debunk five common misconceptions about power of attorney documents.

Myth #1: All Powers Are Equal

Are power of attorney documents one-size-fits-all? Far from it!

Some are “limited,” which means that they are limited to one specific purpose. These purposes might include medical or financial decisions, such as the sale of a property. Others might include a time limit or only go into effect if you are incapacitated (or if you are not).

A general power of attorney may grant the chosen agent full right to make legal, medical, and financial decisions for the individual. It is crucial to select someone who is trustworthy and capable of managing your assets, estate, and health in ways that you would wish.

Myth #2: Internet Forms Are All You Need

There is a whole host of free legal forms on the internet, including power of attorney forms.

All you need to do is print one out and sign it, right? Wrong!

Internet forms may not be specific to your state’s laws, or it may be outdated. It may also grant your agent more, less, or the wrong type of power.

Your best bet is to have a personalized document drafted by a local, knowledgable lawyer.

Myth #3: You Give Up All Rights and Power

Many power of attorney documents do not take effect unless you are incapacitated and unable to make decisions on your own.

Assigning power of attorney does not mean you give up all rights to act in your own behalf. If you still have the ability to make your own decisions, you can, especially if your agent tries to make a decision that is not in your best interest.

Myth #4: You Can Get Power Anytime

This is an important one to take note of. Someone who signs a power of attorney document must do so while he or she is of sound mind.

Power of attorney is something that must be decided and arranged before a person is incapacitated. If you wait until the person is in a coma or develops a cognitive disease like dementia, it will be too late.  

Myth #5: Power Survives Death

A final myth we will address is that a power of attorney document remains in effect after the person dies.

Put simply; this is false. The document serves its purpose only as long as the individual is alive. 

After that, whatever is in the person’s will goes into effect. A power of attorney document does not trump a last will and testament. 

Final Thoughts on General Power of Attorney

Now that we have cleared up some common misconceptions, what is next?

If you and your family need to draft a general power of attorney document, do not go it alone.

personal family lawyer can provide the expert guidance you need to ensure the document is exactly what your family needs. Please contact our office today to discuss your concerns.

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What Legal Documents Would I Need To Establish Child Custody If Their Parents Were to Die?

What Legal Documents Would I Need To Establish Child Custody If Their Parents Were to Die?

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.

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 to raise your children or a foster home where they will be with strangers. Essentially, if you don’t make a plan ahead of time, your childrens’ fate, as far as guardianship, is left up to a court.

Death or permanent incapacitation isn’t the only case that might warrant a temporary guardianship arrangement.  For instance, 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.  Or, a single parent may find themself out of work and being evicted – rather than face having their children live homeless on the streets or go hungry they ay opt to assign temporary guardianship to a more stable friend or family member.  In these cases, they will need to make it very clear about how long the guardianship will last and what the terms of reclaiming custody involve.

Here’s a breakdown/summary of when/why you might need to consider temporary guardianship plans in your estate plan.

Three Reasons You Need to Consider Temporary Guardianship

Incapacitation: If you become incapacitated and unable to care for your children, you want to have someone you trust to make decisions for them.

Substitution: If you need to be out of town and away for your children for any reason, you want to have someone there to care for your children.

Emergency:  If there is an emergency that causes you unable to care for your children and there was no time to appoint a permanent guardian, then a temporary guardian will be appointed.   This is also known as an emergency guardian.  If you have not specifically set up a temporary guardian for your children, they could end up temporarily in the care of strangers, or family members that you would not want them with. 

The Role of a Temporary Guardian

In a temporary guardianship, the person named:

  • Has legal custody of the child or children
  • Has the right to make any medical decisions for the child or children
  • Has the right to make any educational decisions for the child or children
  • Has the right to make any financial decisions for the child or children
  • Is legally responsible for the child or children

The Length of Time a Temporary Guardianship Lasts

A temporary guardianship typically lasts up to 60 days.  State statutes will set the time period if it is a court-ordered guardianship.  The length can vary depending on each case.

If the temporary guardianship is set up in a document such as a living will or through a power of attorney, then it will last for the amount of time outlined in the document.  The amount of time should be reasonable and realistic in case of any changes.

A temporary guardianship only lasts until its purpose is fulfilled.  For example, if you appoint a temporary guardian for your children while you are on a business trip, then when you return, the temporary guardianship will end.

How to Arrange a Temporary Guardianship

There are a few ways to arrange a temporary guardianship for your children.  Each one depends on the reason you need to set one up.

  • Living Will or Power of Attorney: If you are setting up a temporary guardianship to become effective if you become incapacitated or deceased, you want to name the guardian in your living will or on your power of attorney form. This person will be the guardian of your children until you are no longer incapacitated or until a permanent guardian is named.  You may also put a period for which you want a temporary guardianship in place.
  • While you are out of town: If you need to set up temporary guardianship because you will be out of the state or country, you can name a guardian to care for your children in your absence. This can be done simply by writing a guardianship letter or filling out a guardianship form.  In the letter you want to be sure to include the name of the guardian, the reason they are the guardian, the dates the temporary guardianship is in effect, and what decisions the guardian is allowed to make for your children.

What Process Is Required to Obtain PermanentGuardianship?

While the process for obtaining permanent guardianship will vary from state to state, there are some basic steps that the process is likely to entail no matter the jurisdiction where guardianship is being filed for. 

  • You will need to file a petition to obtain legal guardianship of the individual and pay any required fees for the process.
  • You may need to submit to visits, interviews, or background checks from the court if deemed necessary to determine if the action is in the best interest of the individual. 
  • After all of the paperwork and interview process is completed, the court will need to approve the request, and you will be responsible for signing an oath to uphold the responsibilities that come along with guardianship. 

What Would Your Responsibilities Be After Obtaining Permanent Guardianship? 

Some of the responsibilities that may come with guardianship include the following.  Each situation is different, as the needs of those being provided for will be different. 

  • Determining a safe place for the person to live
  • Providing monitoring for their living environment and ensuring that it is safe and clean
  • Being available to consent to any necessary medical treatments and procedures
  • Making determinations on how the person’s finances, benefits, and assets will be allocated and handled
  • Paying any bills the person has 
  • Managing and maintaining any real estate or property that the person has
  • Determining, consenting to, and providing monitoring if there are any non-medical services necessary for the person’s well-being, such as therapy
  • Providing permission for the release of confidential financial and medical information is necessary
  • Maintaining records of all of the person’s expenses
  • Aiding in decisions regarding end of life care and medical intervention
  • Acting on their behalf when dealing with creditors
  • Helping them to perform day-to-day activities and providing them with the resources needed to have as much independence as possible
  • Filing reports annually to the court regarding the guardianship status

While the guardian is responsible for most of the decisions that will affect a person’s life, they should always do their best to seek the input of the individual they have guardianship over, ensuring that their wishes are carried out as well as can be. The guardian should also make sure that their actions align with what was originally authorized by the court and the wishes of the parents, if applicable to the situation. Some guardians may be granted broad authority, while others may be more specified. There are some cases where the guardianship of finances and medical decisions may be split between two people, and in these situations, it is important that the guardian does not overstep these boundaries. 

Do You Need a Lawyer to File for Permanent Guardianship?

While you can petition the court on your own to obtain permanent guardianship of an individual, the process can be mentally and financially draining. The paperwork and process can be complicated for those not familiar with the legal world, and there can also be certain situations that come up that you will need to address. Because of this, you can make the process significantly easier, less stressful, and more likely to come to your desired outcome, if you obtain an attorney experienced in the process of obtaining legal guardianship. 


Once You Become the Permanent Guardian What Estate Planning Do You Need to do?


Advance Health Care Directive

An advance health care directive allows you to name someone to make health decisions for you when you are incapacitated.  This is often used to decide on whether or not to use feeding tubes, ventilators, or other life-sustaining treatments.  It is also used if you are unable to speak for yourself or sign health documents even at a doctor’s appointment.

The Advance Health Care Directive is also known as a living will or durable power of attorney for healthcare.

If you do not have an advance health care directive, doctors will do everything they can to keep you alive even if that is not what you want.  Be sure to discuss with whomever you choose what you would want them to do.

Durable Power of Attorney for Finance

Similar in intent to an advance health care directive, the durable power of attorney for financeallows you to name someone to take care of your finances if you become incapacitated.  This can be the same person or a different person than you named for your healthcare decisions.

If you do not name someone, then a court will appoint someone to manage your finances.  Your spouse may not have access to your finances unless everything has/had already been set into joint property.

You want to make sure that whoever you name is someone you trust.  They will handle all of your finances!

If you do not have someone you trust, you can contact a professional to help you set up fiduciary support.

Trust

Setting up a trust for your children will make sure that they will have the financial support they will need.  It can also ensure that your children will not receive their whole inheritance when they turn 18.  Naming someone other than the guardian to be the trustee of the trust can help make sure your children are using their inheritance wisely.  Regardless, you want to make sure that the guardian and the trustee can get along and make decisions together.

There are many factors involved when trying to lay-out how a trust will coordinate with a guardian, powers of attorney, advance directives, wills, and more.  Your best bet is to set up a consultation with a great estate planning attorney.

Last Will and Testament

Not everyone has a will ready to go even though this document is arguably the most important end of life document you can prepare.  Moreover, it is the most commonplace that people name a guardian for their children. 

Covering the basics here, both parents can write a mutual will, or they can write separate wills nominating the same person to be a guardian.  Obviously, much of this will depend on your marriage and parenting situation.

Naming a guardian in a will does not necessarily make that person the permanent guardian by default.  The named guardian will still need to be approved and found able to perform by a court. 

If you have been chosen to be a guardian for minors, you should request to have a copy of the will on hand, or accessible immediately upon the parent(s) passing.   


YOU Also Now Need a Guardianship Plan

This shouldn’t come as a surprise at this point.  After all, that’s how you came to be the guardian.  Now it’s up to you to create a meaningful contingency plan for guardianship in your estate.  A guardianship plan will lay out what is to happen to your children should you be incapacitated. More than likely if you have a spouse, your spouse will take over the full care of your children. However, if you or your spouse is not in town, not readily available, estranged, or any number of other scenarios where you (or they) cannot immediately take custody of your children, things can go sideways, fast!

Here’s a breakdown of what you need to know about Guardianship Plans:

You will need to name a guardian for your children.  You can also include what you want for your children, such as the type of schooling they will receive, if you want them to participate in sports, what values and morals you want them to grow up with, etc.

You want to choose someone you trust to follow your wishes.  They also should be able to financially and emotionally support your children and perhaps even have the same faith or values as you do.

Having Guardianship Forms Ready to Go

Some parents may have a guardianship form already ready to go.  This form names a permanent guardian for their child and also temporary “first responder” guardian(s). 

A temporary guardian is a person who can be there for the child immediately and until the permanent guardian is able to get to the child.  

Imagine something happens to the child’s parents while they are out of town and away from their kids.  The authorities who have to notify the family have no idea what guardianship plans are in place for the kids and absent any documentation they will have to take custody of the children for their safety.  

A neighbor or close family friend could be a temporary guardian, if so named, for the sake of keeping the children out of temporary foster or state care, until you can provide documentation of guardianship.  Of course, having the guardianship nomination forms immediately on hand is critical for the temporary guardians to step in and establish agency over the minors. 

All potential guardians, permanent and temporary, should have a copy of their guardianship paperwork on hand or readily available, as they may need to produce these documents in a hurry if they are needed.  

For more information about this, take advantage of (or share) our offer to provide a guardianship for your kids today!  

Draft a Guardianship Letter Letting Others Know Your Wishes for Your Family

A guardianship letter is not a legal document, but it is still an important document to have.  In a guardianship letter, parents can document how they want their child(ren) to be raised. 

A guardianship letter may include:

  • Type of Education:Should the child to go to public school or private school? Is there a specific school or district the parents want their child to be in?
  • Religion: What religion is the family.  Is it important to the family that the kids continue to be raised in that faith?  
  • Upbringing: How do/did the parents want the child(ren) raised? Do they want their children to be taught responsibility by having chores and earning an allowance?  Do they want their child to be raised however you see fit?  Have they decided to leave assets to enable this? 

The letter may also include reasons why they chose you as the guardian for their child. Writing the letter is a way to help anyone else not understanding why they were chosen, the reasons that they were.


Being a Guardian is Definitely a Big Deal!

Taking on the responsibility of being the guardian of a child is a big step.  You want to make sure that you are prepared for the amount of work you will have ahead of you.  You also want to make sure you are doing it for the right reasons.  If at any point you do not feel like it will be the right fit for you or your family, tell the child’s parents immediately so they can choose someone else.

You also want to be sure that you have copies of any legal documents for child custody if their parents die, so you can show them to the proper people when the time comes to take guardianship of the child. 

If you have any questions about this whole subject, do not hesitate to reach out to us today.