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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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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How and When Does a Durable Power of Attorney Go Into Effect?

Incompetence Defined for Durable Power of Attorney

There’s no doubt that a Durable Power of Attorney (DPOA) is an important part of your estate plan.  Ideally, if it’s well crafted and updated, a DPOA will protect both you and your assets by enabling someone you have deep trust in, to take care of both your healthcare decisions and decisions concerning your estate.  

Simply put, if something happens to you where you cannot manage yourself and/or your financial affairs, a DPOA allows a pre-designated person to do it for you. 

However beneficial a DPOA is in your estate plan, it doesn’t go into effect until there’s a determination of (in)competence.  Incompetence being the trigger of a DPOA, it’s important that you know what that term actually means, and how you can help to define it in your own plan.  


Incompetence Defined for Durable Power of Attorney

For the purposes of a Durable Power of Attorney, the idea of incompetence can also be looked at as a determination of whether or not a person is competent.  If they are not competent, then they can be said to be incompetent.  However, without getting too far into the weeds on this, being a legal term, we have a lot to fall back on.

In Washington State, without a DPOA a court may appoint a guardian for you if you were to meet the any of the following criteria for incompetence (incapacity).

You have a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.

You have a significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.

You are under the age of majority as defined in RCW 26.28.010.

You can read more about the ability of a superior court to determine incompetence, here.  But generally speaking, you might meet a definition of incompetence if you lack the physical, mental, emotional, or legal capacity to take care of yourself or your financial affairs.

 

So, All This is Already Law, Why Does it Matter if I Get a DPOA?

The law gives pretty detailed criteria for how to determine competence.  It also describes who has the authority to appoint guardians for you and your estate.  However, the law doesn’t have the power, or understanding, to know which one of your kids is the best one to take care of you in the event you become incapacitated.

(Also, who will take care of your kids if you become incapable of doing so?)

A DPOA gives you the ability to plan out a worst case scenario and keep people out of the situation that don’t know you, the people you trust, and your wishes.  After-all they would be trying to do the right thing by you, but they would truly not be able to understand who you would prefer to take care of you and/or your assets, and why.

There are always two points in a DPOA agreement where the evaluation of competence is key to the execution of a DPOA.  And in some cases there is a third point where you should understand what a determination of competence requires.

 

Determining Competence at the Establishment of a DPOA

The first point is at the establishment of a DPOA.  You can’t enter into a DPOA agreement if you lack the capacity to do so in the first place.  That would make the whole idea of a DPOA pointless.  A DPOA protects you by appointing someone else to act on your behalf if you become incapable of doing so.  If you are already incapable, you can’t appoint someone, being that you are unable to make that determination.

We’re going round-and-round on this.  But suffice it to say, it’s not uncommon for the attorney helping you to draft the DPOA to ensure that you have the capacity to do so in the first place.  In some cases, this may even mean getting a doctor’s opinion that you are competent and capable of entering this agreement.

 

Determining Competence at the Execution of a DPOA

The second point where a determination of competency is pivotal is when there must be a determination of incompetence.  It’s possible that you may be unconscious or otherwise alive but incapable of interaction.  in which case the issue of competence is essentially clear.  However, in most cases, the question of competence is one that slowly manifests in your mind, your families, friend’s, and caregiver’s minds for some time before it is finally addressed.  Often, the idea of addressing those barriers is tremendously tough for all involved.

As you setup your DPOA you can help to smooth potential issues like this by defining how you’ll be determined to be incompetent.  Do you have a trusted family doctor that knows you? They can be singly identified in your DPOA as the person trusted to make a professional determination of competence.  Are you worried about one doctor being swayed or being too busy to take the time to make an informed decision?  You can specify that you desire two doctors’ opinions prior to the stipulations of your DPOA being met.

 

Safeguarding Yourself in a Durable Power of Attorney

Whatever criteria you and your estate planning attorney discuss and agree upon for your DPOA, once you’ve established the DPOA it can and will go into effect if the criteria are met.  And it’s possible that if executed, by meeting the criteria you set forth, that you may not feel at the time that you’re incompetent.  This is why you should work closely with someone you trust to setup your DPOA, and why you should consider the idea that your incompetence might only be a temporary situation.   You will want to work with your attorney to ensure that the potential and process for you to re-establish competence and re-establish control of your own care and estate management abilities is spelled out too.

A DPOA is one aspect of lifetime planning that you should consider at any age.  However, it is a very serious item that you will want to spend time thinking about, understanding, and once established you’ll want to update it to reflect your changing life needs as well as your changing relationships.

 

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What You Need to Know About a Durable Power of Attorney in 2018

What You Need to Know About a Durable Power of Attorney in 2017

There are several different types of Powers of Attorney (POA).  Regardless of the kind of Power of Attorney we are talking about, you are essentially enabling someone else to act on your behalf. 

Often, you will sign a POA for legal representation, or for other situations in which you might want someone to be able to sign contracts and documents for you. 

In the case of estate planning, you typically create powers of attorney so that others can act on your behalf if you become incapacitated or otherwise not able to make daily decisions for yourself.  


How a Durable Power of Attorney Works

A standard power of attorney will terminate if the person that it was created for, known as the principal, becomes incapable or incompetent.   Whereas to enable caregivers or loving relatives to act in the best interest of someone in a state of incapacity or incompetence, a durable power of attorney can be established.  A durable power of attorney (DPOA) goes into effect (or remains in effect) after the determination of incapacity or incompetence.

Boiled down to a simple statement, a Durable Power of Attorney survives the Principal’s competency.

Determining Competency When Creating a Durable Power of Attorney

The story of how Fatima Williams swindled Jack Adler out of more than $100k in less than three months brings to fore the issue of competency at both the establishment and the execution of the durable power of attorney (DPOA).

At establishment, meaning when you create the DPOA, the idea of competency centers around your ability (also called capacity) to understand the situation you are entering into.  You need to be able to understand what a durable power of attorney is, and what that may mean for your future.  You are appointing someone else to take care of potentially all of your financial and legal interests.  Moreover, it is wise that you understand that without proper counsel, this can lead to some drastic consequences.

Often, the establishment of competency at the time of creating a DPOA falls upon the person creating it to determine.  If, for instance, you download a basic DPOA template, fill it out and sign it, one might assume you had the competency to do so.  Of course, someone could argue that you lacked competency to do so when you signed it – and the whole thing could be challenged.

One way to reduce the issue of questioning the capacity of the principal in enacting a DPOA is to use an estate attorney – who will establish competence before drafting a DPOA.  Another way would be to get one or two doctor’s opinions that you are completely capable of entering into this agreement with an understanding of the potential risks and benefits and a sound mind.

Determining Competency When Executing a Durable Power of Attorney

We have established that you need to know, to a basic level of understanding, what you are doing when you enter into a DPOA.  Now we need to cover establishing competency, or incompetence, at the point when a DPOA would become necessary to activate.

Sometimes, the issue of “are you competent” is straightforward to assess.  If you have had a severe medical emergency and have become incapacitated, you certainly cannot manage your affairs, and a DPOA will genuinely help your designated agent (or attorney-in-fact) to manage them for you.

However, sometimes the issue of competency is a bit harder to determine.  Is the dulling of mind due to age sufficient to assess incompetence?  At some point, you might say yes, depending on the severity, or even the diagnosis.  But, that might also be a very subjective determination.  For this reason, you can put into the DPOA stipulations and protections requiring multiple doctors’ opinions, or potentially one specific doctor’s opinion if that is someone who knows you very well.

Example #1: Janet an Aging Senior With a Durable Power of Attorney

Jane is a 72-year-old retired school teacher from Spokane Valley.  She is very active and often volunteers at her church.  Her husband passed three years ago, and her family consists of 4 children.  Three who live out of state and one who lives nearby. For the last year, Jane has been slowly having more challenges.  She fell 6 months ago and hurt herself.  She is started to forget names occasionally, and more worrisome she is beginning to miss bill payments for no other reason than she did not remember.  Her financial situation is in rapid decline, despite having a healthy amount of assets and a monthly pension.  

Jane’s child, who lives in Spokane with her, saw the past due and collection notices when picking up Jane’s mail and started talking with the rest of the family to determine what to do.  About 15 years ago Jane established a durable power of attorney naming her oldest daughter Janet as the person to manage her affairs if it became necessary.  Jane has consistently had the DPOA reviewed and updated, and the last time it was updated was about one year ago.  Before the family noticing these declines in her capabilities to manage her affairs.  

Janet and the rest of the siblings agree that they should see if Jane will go to the doctor so they can do a checkup and potentially determine if the memory issues are temporary or chronic.  After the doctor has reviewed Jane’s medical history, his experience with her, and her current presentation, he is of the opinion that Jane’s memory challenges are in a bad state and are going to get worse.  He believes her to be unable to manage her own affairs at this point safely. 

Because Jane established a DPOA, Janet now can act on her behalf because the conditions and stipulations of the DPOA have been met.  This means that Janet can use the DPOA to start paying Jane’s bills using Jane’s assets.  And to interact on her behalf with doctors, about her treatment(s) and health.  

Example #2: John a Single Parent Without a Durable Power of Attorney  

John is a 27-year parent of a 6-year-old boy.  John’s wife passed away five years ago, and John has been raising their son on his own since.  John works in construction in Spokane and Northern Idaho and has a small house that he owns, but shares with his mother. 

While John was at work, he got hit in the head pretty bad and became incapacitated.   He has been rushed to the hospital, and his employer let his mother know immediately as she was the emergency contact.  When his mother found out, she picked up John’s son and rushed to the hospital, only to find out that the doctors would not share his condition with her.  They had no way to determine if she was his mother or someone else.  And they have requirements under HIPAA to be restrictive about letting personal medical information out, even in a situation like this.  

John’s mother knows that the house is in John’s name, there’s no other designated guardian for his child, and he has a desire to stay on life support if there’s ever a question about his condition.  They have talked about this many times, but never put it on paper.  

In fact, there is no DPOA, so even though John is unable to manage his affairs, he has never designated another person to do so in his stead.  And being unmarried, no one else can do so without getting outside permission.  John’s condition, his treatments, his assets, and the guardianship of his child is all going to be left up to how & if he recovers.  And if he does not, a doctor who does not know him may determine his healthcare options, and a court who does not know him may determine the disposition of his assets and the guardianship of his young child.  

What You Need To Do Today…

Without a DPOA, you are leaving very important decisions up to chance, should you ever become incapacitated.  In the stories above Jane knew she was getting to an age that incapacity was likely to occur at some point.  However, in the second story, John was a healthy young man that just had an accident out of nowhere.  Because Jane planned the transition into care during a chronic mental decline was mostly seamless.  Because John did not plan ahead, his transition into care and the care for his child and assets were largely left up to decisions of people who do not know him or his wishes.

Point being – Establishing a DPOA today can truly help yourself, and your family avoid some seriously stressful and damaging situations in the future.  This, however, is only one of many family protection planning tools that you should consult with a family and estate lawyer about.  The DPOA is one thing you need, but it is not the only thing – as we learned from John in his story.  Had he a guardianship plan, a will and/or trust, and good sound advice on future planning this challenging time coming up for his family could be a lot more in their control.

Get Your Power of Attorney Set Up Today!

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What A New College Student Can Teach Us About Family Protection Planning

What A New College Student Can Teach Us About Family Planning

 

Your baby is now 18 years old and is on their way to college as a freshman this coming fall!  That happened fast…In fact, it may have happened so fast that you didn’t realize that while they may be your baby still, they are full grown adults in the eyes of the law.  

In the eyes of the law, if your adult child has a medical emergency, you have few guaranteed rights to help them, and in fact – you may not have any legal authority to do so.  

You can start to imagine how not being able to get an idea of the medical issues arising from a car accident, falling down the stairs, even an accidental injury getting out of bed might cause un-imaginable stress for you, your child, and the rest of the family!  

A little bit of family protection planning can help you, your child, and your family plan for these types of events.  

 

 

Have You Heard of HIPAA?

HIPAA not HIPPO – Know the Difference! 🙂

HIPAA is the Health Insurance Portability and Accountability Act.  (here’s more about HIPAA).  This law protects patient privacy and you may find that even if your adult child is still insured under your health plan coverage, it is up to a medical provider to decide to disclose medical information.  They don’t hold back for spite, of course, they are required to only disclose information if in their professional opinion it serves the best interest of the patient.

 

 

How a Lack of Family Protection Planning Can Affect You!

 

Imagine your daughter or son is away for college and experiences a medical emergency.  They’re still only 18 or 19 and although this is quickly changing, in many ways you are still the primary adult influence in their lives.

In the midst of your adult child’s medical emergency, they are unable to provide authorization to have you get pertinent details of the situation, talk to the doctor, and potentially make very important decisions.  You are now as much in the dark on the whole situation as a stranger, but of course, you’re not a stranger.  Your his or her parent!

This isn’t just a cautionary tale either…  This happens every day.

So, how can you prevent this?!

 


Contact a Lawyer to Protect Your Family Today!

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Prepare a HIPAA authorization

This is a detailed document that enables you to use obtain protected health information.  The use case(s) and extent of information that you are allowed to see can be spelled out in this HIPAA authorization as well.   This means that if your son or daughter didn’t want certain health information disclosed (sex, behavioral health records, drugs, etc) but still wanted you to be able to obtain and help make decisions in the case of something more substantial, you’d be able to do so.

 

Prepare a Medical Power of Attorney, or Equivalent

This is a document that goes by different names or is sometimes wrapped up into a HIPAA authorization or medical Power of Attorney, depending on where you live.   With the consultation of a good estate and family planning attorney, you’ll be able to decide how best to approach this.  But the point is, that you need a document that will enable you to act as an “agent,” allowing you to make medical decisions on behalf of your child if they are unable to make those decisions them-self.

Where the HIPAA authorization allows you to gain the necessary information to handle a medical emergency, the Power of Attorney enables you to make decisions based on that information – if necessary.

 

Consider a Durable Power of Attorney

In the same way that a medical power of attorney gives someone the authority to make medical decisions for another person, a durable power of attorney enables them to take care of other business.  Remember what it was like before your child turned 18, you had to sign permission slips, in fact you signed all legal documents on their behalf.  This is like that in the manner that you’d be able to do the same on their behalf.  There’s obviously a distinction though, they are adults now – so this is something you will want to discuss with them.

 

 

Talk to Your Children About Family Protection Planning

 

Before doing any of this, you should probably have a good conversation with your child.  This isn’t about control, or fear, it’s about planning for the future and trust.  For this reason, you should also consider if you need this for yourself.  If you don’t already have a plan set up for yourself, it may be easier to approach these conversations as a mutual protection planning process.  You would be protecting yourself too.  In the event of a medical emergency causing you to become incapacitated, your children can help you as well.  And best of all, by doing this, you are demonstrating to them, through personal & parental leadership, the value you place in long-term family protection planning.

 

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How Do I Appoint a Guardian For My Child If I Die?

How Do I Appoint a Guardian For My Child If I Die?

Who Would Raise Your Children If Something Happened to You?

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Randi L. Johnson, Lilac City Law, Estate Planning, Social Security Disability, VA Disability

By Randi L. Johnson

How Do I Appoint a Guardian for My Child If I Die?

 

Honestly, no one wants to think about this question. It’s a tacit reminder that we are indeed mortal and, in some cases, we may leave this world before we are ready.  What are our plans if this were to happen?  Putting your assets in a trust, or last desires into a Will – helps to make sure your financial holdings are passed on to whomever you want them to go.  However, if you don’t create a care plan, or declare a guardian for your children the courts may decide who cares for your children if you die.

Are you comfortable with a stranger making this decision?

 

A Stranger Might Raise Your Children

“My greatest fear, someone I don’t know raising my child… What if something happens to me, who is going to take care of my child?”

This sentiment is a visceral fear that most parents have at some point.  And for a good reason; when we raise our children, we are trying to put the best of ourselves into them.  That means our world view, and our lessons learned, even our religion or philosophy for life.  In short, we are trying to instill our values and love.  But not everyone has those same values, do they?

Before we get into how to go about setting up a Guardianship Plan, this is something to consider…Who should you appoint as a guardian for your children in the event of untimely death?

 

Who Should Raise Your Children if You Die?

Establishing the Guardianship Plan (Kids Protection Plan) is the last step in the process of protecting your kiddos.  Before you even get that far, you should first be thinking very seriously about who can provide a lifestyle for your family that you’d be ok with raising your family. 

Often this is a sibling, parent, or maybe even an adult child.  However, it’s not uncommon to consider someone who isn’t directly related. Your internal family dynamics aren’t on trial; it’s a very personal consideration and decision you are making in the best interest of your family. Don’t unduly narrow the scope of consideration; this is a choice you are preparing for everyone’s best interest.

Here are some basic requirements and some other things to think about:

 

Your children’s guardian must be:

  • At least 18 (in most cases)
  • Able to fulfill their duties as a guardian
  • Able to financially provide for your children

 

Your children’s guardian should be:

  • Of similar outlook to you and your partner
  • Knowledgeable of your goals as a family and parent(s)
  • Capable of providing emotional support for your children
  • Stable (family wise, financially, etc.)
  • Someone that you’re comfortable having around your children.
  • Aware that they are being asked to be appointed as a guardian

 

 

How to Appoint a Guardian For Your Children

If you know who you want to take care of your children, the process for establishing a guardian involves declaring your desires in such a way that it will stand up to scrutiny by a judge if necessary. That’s a wordy way to say that just because you have a wish for a guardian, it doesn’t mean your preferences cannot, or will not, get challenged.  This potential hurdle is why so much consideration should go into your decision of who to appoint as a guardian.

A verbal agreement, for instance, is quickly challenged and will not instruct a judge what your wishes are. They may consider it, but without proof, your children will be relying on a judge’s discretion.  In this case, a judge well-meaning meaning but does not know you and will only know you through what information you leave behind if any. Frankly, there are too many unknowns here for me or most moms to feel comfortable knowing things will, “turn out ok!”

Better than a verbal agreement, a quickly drafted written agreement provides at least some potential protection.  In this sense, an informal written agreement certainly is better than a verbal agreement, but it can still be easily challenged.  When looking for how to prepare documents to stand up to future challenges, we always advise putting them together in such a way that it answers all the questions a judge would have about your wishes. That’s why when we prepare guardianship plans, we put all these wishes, desires, values, and more into a well prepared, and notarized, Last Will and Testament.

Placing your guardianship plan in your Last Will means a couple of things.  First, because you probably had an attorney’s input on the structuring of the guardianship plan, it will be structured to be clear enough to avoid being challenged.  Second, it automatically becomes part of the probate process, for which your family will likely have an attorney helping them through.  If the plan is part of your Will, the attorney will be working to make sure your wishes are carried out according to what you have drafted.

 

Alternatives to Placing Your Guardianship Plan in a Will or Estate Plan?

It is possible to create a Guardianship Plan and not have it be part of your Will. Here’s a free and easy way for you to do it right now.<- This will get you set up with the basics of a Kids Protection (and Guardianship) Plan. You’ll still want to consider having an attorney involved in this process, even if you can use that link to start laying out your desires without one.  The benefits, as described before, are that with an attorney’s assistance you’ll be creating a plan that will stand up to the scrutiny the law requires a judge to pay to your desires and the well-being of your children.

 

What Happens to My Family If I Die?

Strictly speaking, death isn’t the only way a Guardianship Plan might become necessary.  A Guardianship Plan might be essential if you (and your partner) become incapacitated in some manner too. This potentiality in and of itself describes why you might want to make this more of a protection plan than something you place in your Will and forget.  If you haven’t died, but need to appoint a guardian, you likely still want the plan to support your desires!

Back to the point, what happens if you die?  The processes are determined by the state you live within, but generally speaking, a guardian will be required to establish the ability to provide for your children. This procedure occurs in a court setting. Here’s a great list of requirements and resources for more information, by state.  Of course, if you have questions about this, you can always respond in the comments below too, or send us a question/messagehere.

 

Have you Been Through this Process as a Child or as a Guardian?

We’d love to put together a list of tips or lessons learned from the perspective of a child having gone through this, or from the perspective of a guardian having adopted the children of deceased parents.  Please feel free to reach out to us so we can help parents better understand how this process works.  You can contact us hereor connect with us on Facebook.

 

I’m Ready to Protect My Family if I Die, What Do I Need to Do?

Reach out to us via the contact form below, or simply call our office. Our team will reach out to you and send you all the information you need.  We are here to help you protect your family.  It’s our mission and our passion to support you and your family. 

 

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We Help Families Just Like Yours!

I don’t know really where to start in order to cover the magnitude of professionalism, understanding, persistence and compassion Lilac City law showed me. From Randi to each one of her staff-they worked very hard on my case and pushed me to keep fighting in the midst of several set backs from disability. They were always atop of communicating with me and all others involved. I highly recommend them and not just because I received a favorable decision but because of the plan they executed; so even if the results were unfavorable-I would still not hesitate knowing I chose the right practice. Thank you for you compassion and patience😊
Joyce Kelly
Joyce Kelly
22:01 02 Jun 20
Randi serves humanity with compassion and grace in dealing with all matters of life and death. I would highly recommend her for all the services she offers.
Sarah Boban
Sarah Boban
20:14 16 Apr 20
I wholeheartedly recommend these people. I had a crazy case and at times I was a mess. My team, Randy, Pam, David, and, Marissa always treated me with kindness and compassion. Thank you guys so much for the huge difference you've made in my life.
Jenni Boo
Jenni Boo
23:24 12 Mar 20
I had my hearing yesterday for Social Security Disability. I was very nervous , but we won my case. Randy and the whole team at Lilac Law was very supportive and understanding! They truly want to help people win the benefits they deserve and I highly recommend them!
Tiffani Pelella
Tiffani Pelella
17:38 03 Mar 20
Initial meeting with David Morris went well. He treated me with respect and understanding. I felt that I was listened to. Even accommodated me when I arrived 1 hour early. Highly recommended.
Tom Richardson
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18:09 06 Feb 20
The staff is so great, it was really great to work with them all, and they were able to help me tremendously! Thank you for a great experience!
Becki Lynn
Becki Lynn
23:43 28 Jan 20
Don't remember exactly when I first met with them, but they were absolutely amazing to work with and only took a few months for my disability claim to be approved.I highly recommend Lilac City Law.
Matt Napora
Matt Napora
17:46 06 Jan 20
Everyone needs to take care of their estate and make sure their family is well taken care of. Randi and her team will take very good care of you and protect you and your family’s future. You cannot go wrong using their services. Client service is their top priority!
Kim Benjamin
Kim Benjamin
21:52 02 Nov 19
Randi is a terrific lawyer and a terrific person. I wish we lived closer so that we could work with clients together more often.
Meghan Freed
Meghan Freed
17:31 02 Nov 19
What a great place! Thanks again!
S Binks
S Binks
22:39 01 Oct 19
Wow, these guys were so nice and easy to work with. It ended up that they couldn’t help us with what we needed, but the gentleman we worked with went above and beyond my expectations, and more. I could tell that they really care about people there, not just cases. He was super patient in explaining things to me when I didn’t understand, it wasn’t a stressful experience as I thought it would be. Thanks for everything guys!
Melanie S
Melanie S
06:09 21 Aug 19
Lilac City Law is an incredible firm! I had the pleasure of working with the amazing team at Lilac City Law for nearly 2 years. Their team is absolutely remarkable! They are extremely knowledgeable, helpful, and overall compassionate when it comes to working with their clients. I sought their assistance nearly 2 years ago and have continued to work with them. I had a great deal of interaction with more than just one member of the Lilac City Law team and therefore can attest to the fact that this group of individuals is absolutely unparalleled. Attorney, Randi Johnson, is an exceptionally skilled lawyer as well as an overall remarkable woman! Her support staff is incredible as well, including Cassandra, Pam, Marissa, David, etc. with all of them by your side you have been blessed and are going to receive the best results possible. I would absolutely recommend seeking assistance from this law firm, as they have the ability to change lives; they definitely did mine. Thank you all so, so much!
Torrey Tolmie
Torrey Tolmie
17:03 22 May 19
I had a great experience with Randi and her team this past year when we worked with them to create our first-ever wills and trust. Planning for your untimely death and discussing personal finances aren't always fun topics, but we were appreciative of Randi's approach to these potentially uncomfortable conversations and especially liked the recorded legacy interview she conducted with us. Total 5-star experience!
Tine Reese
Tine Reese
20:39 30 Jan 19
My husband and I worked with Randi and her team to complete our last will and testament, advanced directive, and health care proxy in the summer of 2018. Randi, and her team, as well as David Morris, were exceptionally kind, very professional, and thorough. We had several meetings to go through the important stuff - the financial info, heirlooms, and disposition of my husband's motorcycle. At each meeting, Randi and her team listened to our intentions and concerns. At the signing ceremony, we got a huge binder with our info and a data stick for safekeeping. Included in our will is a review which will take place every other year. We also got a document which states who can take our children to give our babysitter in case something bad happens to us when we were out. I'm very satisfied with Lilac City Law, and their work. I would recommend them without qualification to anyone.
Anna Marie Martin
Anna Marie Martin
23:52 29 Jan 19
Parents are so intentional about so many aspects of their children's lives. Few will forgo putting together a will. But, what if you don't die? What if you are just incapacitated? Are you prepared for the unexpected? Are you leaving your children at risk? If someone else does raise them, do you know that they will be raised according to your wishes? Have you even thought through what your wishes are? All these questions and more will be covered in the process of completing a Family Protection Plan with Randi Johnson at Lilac City Law. Having our Family Protection Plan in place gives me an incredible sense of comfort and peace of mind. I highly recommend Randi and the staff at Lilac City Law. Hopefully you never need her services, but isn't it better to be prepared than to leave things to chance?
Marchauna Rodgers
Marchauna Rodgers
03:16 22 Jan 19
Lilac City Law did an amazing job with my estate plan, which was something I had 'thought' about doing for a long time, but avoided... Fortunately, Randi and her team made the process very easy and approachable. I now feel relief knowing everything is in order for my two daughters in the (hopefully unlikely!) event something were to happen to me. Thank you Lilac City Law for helping me sleep better at night! 🙂
Amber McKenzie
Amber McKenzie
03:30 09 Jan 19
This has been an awesome experience from beginning to end. Randi and her team were super helpful in helping us wrestle through all the aspects of our estate plan. Randi’s knowledge of estate and wills were very obvious from the beginning and we are thankful for her and her staffs expertise. Thank you so much!
Kevin Bunce
Kevin Bunce
17:22 12 Dec 18

Why You Need to Update Your Estate Plan After These Life Events

Too many estate plans are created and then quickly forgotten, put on a shelf, and never looked at again. While we do recommend that you review and update your estate plan at least every three years, no matter what happens in your life, your plan must be updated immediately in the event of any of these seven life events.

Marriage

Getting married is the joining together of two lives. Your plan must address and account for your new legal status. Naming your spouse as a beneficiary on your insurance policies, updating your will and/or trust, and including him or her in the determination of how your financial and medical decisions will be made, if you cannot make them for yourself, are all critical steps to take after marriage.

Divorce

When you begin the process of getting divorced, you also must update your estate plan, unless you continue to want your future ex-spouse to receive your assets, and make financial and medical decisions for you, if you cannot.

Once your divorce is complete, you may have an entirely new asset profile to plan for now that you know what you own, what your ex-spouse owns and how you hold title to your assets, so it’s time to update your estate plan.

Births and adoptions

Providing for the care and custody of your child in the event of your death or incapacity is  paramount in your estate plan. That means naming guardians for your new child, both long and short-term, with a Kids Protection Plan® is a must. And, if you have not already done so, you’ll definitely want to consider setting up a trust for your child, to receive the assets you will be leaving behind.

Deaths

The death of a loved one die is never easy. And when they were a part of your estate plan, their death should prompt a review of your own plan sooner rather than later. You may need to name new beneficiaries, find a new person to hold Power of Attorney, update your health care directive, or identify new guardians for your children. This should not be put on the backburner.

Sickness

If you are in the midst of an illness, you may want to revisit who you have chosen to make medical decisions for you, in the event that you cannot, and how you want those decisions to be made.

Moving

When you move to a new State, have a lawyer review your estate plan to ensure your documents will still operate as you desire. . Some documents may need to be revised and you will certainly want to ensure any new real estate you acquire in your move is accounted for and properly transferred into your plan.

New Assets Acquired

More money means more problems, but only if you don’t plan well. Revisit your estate plan each time you change investment accounts, inherit any assets, acquire new property or other investments, or start or sell a business. Most plans fail because they do not take into account all of the assets owned by the person who died.

Update your Estate Plan

If you are anticipating or have recently experienced one of these major life events, contact us. It’s time to update your plan.

 

This article is a service of Randi Johnson, Personal Family Lawyer®. We don’t just draft documents, we ensure you make informed and empowered decisions about life and death, for yourself and the people you love.  That’s why we offer a Family Wealth Planning Session,™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

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The Challenges of Creating a Guardian Plan for Children


Inspired by an Article in Mom.Me

“Why I Still Don’t Have a Guardian for My Child” 


Sometimes you come across something that another person writes that stops you and makes you say, “yes! This is what I’ve been trying to say.”  An article written in Mom.Me (link above) recently highlighted, clearly, the work we’ve been doing here at Lilac City Law to help families create a guardian plan.  We felt an article like this really must be shared.

In the article the author tells a couple stories.  The first is of the chaos and support she received when her father died.  And the realization she had that his passing without a will, guardian plan, or wealth plan created challenges and even a bit of resentment among his survivors.   <- Figuring out what you can, should, and are able to do with the assets of someone is far more challenging and stressful when they are not around to give their intent; especially, absent a will or Guardian Plan.

She Learned a Lesson but Never Followed Through

The author swore not to put her kids in the same situation.  Eleven years passed between the author’s recognition of the need for a will and guardian plan, yet, she never did complete these.  This is the part of the article that hits home.  And it echoes why Lilac City Law started providing family wealth and kids protection planning.  If you missed it, here’s my story too.

In the article the author reaches out to friends to find out their take on why they knowingly avoided the issue of creating a guardian plan for their child(ren).

The Author is Not Alone

The author’s friends shared with her reasons including:

  • Dysfunctional family and relatives / next of kin
  • Fear of telling family
  • Worry about family resisting desires of various plans
  • Finding guardians who share faith and values
  • Desiring guardians who may not be family
  • The awkwardness of approaching potential guardians
  • Compassion and concern for the feelings of potential guardians
  • Skepticism that a potential guardian would be able to take on that role

Creating a Guardian Plan is Kinda Scary

There are a lot of reasons that can hold you up in creating a guardian plan or will.  Of course there are the common concerns cited by the author and her friends above.  In addition to these, there’s easily dozens more reasons why you’d delay (until it’s too late) creating one of these plans.   Waiting is not a good plan, but neither is doing it half-heartedly.  If you’re going to create a plan create it right.

Creating a guardian plan takes courage.  Courage to realize that at some point everyone passes.  And for many, even more courage to be able to lay things out for your family in ways they may not agree with.  A good guardian plan or will is your way to say, for my family (and assets), these are my wishes.

See the video below to preview what a good guardian plan, estate plan, or will looks like.


There’s a difference between a do it yourself plan (DIY) and working with a dedicated professional. 


 

Lilac City Law Works with Families to Develop 

Estate Plans, Incapacity Plans, Wills, and Kids Protection Plans 

 

The article referenced and the stories cited in this blog post were written by Sarah Tucker, and published on mom.me on Oct 19, 2016

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Create a Plan to Protect Your Children


Family is important to Lilac City Law.  We have dedicated a big part of our business to supporting families in all phases of life. From Kids Protection Plans to disability and long term support advocacy.  The one thing we know that always makes things easier, is the value of creating a plan.  

Remember When..

Think about it like this.  You are a parent, when you had your first child you went through a process.  You discovered you were pregnant and probably saw a doctor.  Then you started to get information about your child’s development.  After a couple months you realized there was going to be a whole process you needed to have a plan figured out for the actual child birth event.

Building a Plan

Were you going to give birth to your child at home, in a tub, or in a hospital?  Did you want a midwife, doctor, or someone else to deliver your child?  Did you plan to go to parenting and birth classes?  You probably spent a great deal of time thinking about all these things and more!  And this was for the birth of your child.  No doubt you had a small bit of anxiety about what happened next..

Childcare, work-life balance, school, doctors appointments, sports, sick kids, changing, immunizations.  All decisions that were going to be made and that you were going to be responsible for.  But what if you weren’t.  What if you couldn’t make those decisions because of a worst case scenario?  Who would?  How would you make sure your vision and your wishes were implemented for family?

This is where and why Estate Planning, Incapacity Planning, & Kids Protection Planning exists.  And this is also why we do what we do at Lilac City Law.

Without a Plan

In the worst case of the worst case.  A death or incapacity, a plan does sort of already exist.  However, that plan has been put in place by the state.  A judge who doesn’t know you or your wishes will be forced to make decisions for your children..without your input.

What are your desires for your children in the event of your death or incapacity?  Who do you want to take care of your children?  Who is going to manage your assets?

Create a Plan and Keep your Family Protected

Again, remember that plan you laid out before the birth of your children?  Remember how many contingencies it accounted for?  You did this because even though you hadn’t met them yet, your children and their futures mattered dearly to you.  You recognized that the more you planned ahead, the less likely the worst case scenario would occur.

A Kids Protection Plan is a plan you should create now for those children for that very same reason.

 

Lilac City Law Works with Families to Develop 

Estate Plans, Incapacity Plans, and Kids Protection Plans 

 

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The Value of Proper Protection Planning

If you Google “Kids Protection Plans” you will see the work we are putting into providing services, education, & support to our community.  LCL is doing this because we are striving to be a “different kind of law firm.”  Being different means building a relationship with you and using that relationship to personalize a plan for you and your family.  This is our protection planning process, it is fundamental to our mission of providing the best Personal Family Law services possible.  

The Usual Talk

Establishing an effective planning process with your family lawyer is very important.  Most family lawyers will say, “Without proper planning…[fill in the blank].”  But they don’t walk you through what that means or how you will know if you’ve actually set up a proper plan.  They focus on what happens without the plan and leave it to you to fill in the blank that they can do it for you.  They are selling fear, then selling themselves as the solution.

The fear is that without the plan, your children could be placed in CPS.  A judge can decide who will raise your kids.  A portion of your assets could be lost to probate.  Your children’s financial inheritance can be poached by morally questionable “wealth planners” when they turn 18.  In fact, the harder we think, the more we can bring to the table as potential reasons for you to be concerned.  There are more things to be afraid of than are even reasonable to discuss.

Having a Proper Plan

So what does it mean having a proper plan? How is reframing the discussion about establishing a plan better than discussing the fears about not having one?  Well, first, having a plan effectively mitigates the scary scenarios above.  A proper plan also has other tangible and intangible benefits.

A proper plan takes a weight off your shoulders.  It gives you confidence and removes stress from your already busy plate.  It is also good for your family.  A plan demonstrates to them in a direct way that you are planning for the worst case.  And for your growing family, it demonstrates the value of looking into the future and planning contingencies for the potential worst cases.

It has to Work for You

In addition to how it makes you feel, a proper plan is also one that works.  The plan will work in the situations that you foresee, and maybe the ones that you don’t.  It will reflect the needs of your family today, as well as in the future.  It will be a custom plan.  And it will be an up to date plan.  This is where LCL really makes a difference.  We build custom Kids and Family wealth plans based on your needs.  And we do it based on getting to know you and your family today and in whatever tomorrow brings.

Find out More: Protection Planning

 

Lilac City Law Works with Families to Develop

Family Wealth and Kids Protection Plans 

 

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