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?

“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?”


Who Would Raise Your Children If Something Happened to You?

Honestly, no one wants to think about this question. It’s an implicit reminder that we are indeed mortal, and, in some cases, we may leave this world before we are ready. 

Who will you leave your child with if you die?  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

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?

Do You Want a Stranger to Raise Your Children If You Die?

Establishing the Guardianship Plan, also called a Family Estate Plan, is a critical 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

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 guardian will generally make 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.

Guardians may also cover managing the entrusted person or child’s finances. However, 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.

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

If the appointed guardian cannot provide these things themselves, they must find a home that is suitable to offer those in their care.

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

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 to 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.

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.

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.



Choosing Your Children’s Guardian

Your chosen guardian may fill-in for you temporarily, while the authorities figure out what to do, or they could end up being the person to raise your children to adulthood.  You have a lot to consider with this decision.  You can’t assume that your partner or your parents will step in either.

While it is rare for something to happen to both parents of a minor child, it does occur, and the consequences are simply too severe to not take a few simple steps to select and legally name guardians the right way.

Define Your Ideal Guardianship Candidate the Right Way

The first step in selecting a guardian is to come up with a list outlining the qualities and attributes you and your partner value most when it comes to the long-term care of your children. The list can mirror your parenting philosophy and style, as well as list the qualities that would make up your absolute “dream” guardian.

In addition to qualities like parental values, discipline style, religious/spiritual background, kindness, and honesty, you also need to consider more practical matters.

Is the person young enough and physically capable of raising your kids to adulthood? Do they have a family of their own, and if so, would adding your kids to the mix be too much?

Geography should also come into play—do they live nearby, and if not, would it be a major hardship to relocate your children? Is their home in a location you would feel comfortable having your kids grow up in?

One thing you may think you should consider is financial stability, and that is a frequent misconception. Even though the people you name as legal guardians for your children will be making decisions for their healthcare and their education, they do not need to be the ones managing your children’s financial needs.

Ideally, you will leave behind ample financial resources for your children and the people raising them. You can do this by establishing a trust for those resources and naming a financial guardian, or trustee, to oversee them.

Make a list of Candidates

Based on those parenting qualities, start compiling a list of people in your life who match your ideals. Be sure to consider not only family but also close friends.

Though you may feel obligated to choose a family member, this decision is about what is best for your children’s future, not trying to protect someone’s feelings. And if you are having trouble coming up with enough suitable candidates, try coming up with people who you would NOT want as guardians, and work backward from there.

Or consider the person a judge would likely select if you did not make your own choice and whether there are any other people you would prefer to raise your children.

Determine Back-Up Guardians

It would be a big mistake to choose only one guardian for your child. It is impossible to say what the future holds, and it could be that the guardian you select passes in an accident with you, leaving no discernable choice for a guardian to your child.

Make sure that you have a solid list of three or four guardians and the order in which you have chosen them. It never hurts to be too careful. When the life of your child is in the balance, everything helps.

Just because someone has been with you through thick and thin does not mean you should name them as your child’s guardian. Your friend, you have known from elementary school but still lives in his mom’s basement, might want to be on the list but it would be wise to leave him out.

Select Temporary Guardians (aka First Responders)

In addition to legally naming long-term guardians, you also need to choose someone in your local area to be a “first responder,” or temporary guardian. This is someone who lives near you and who is willing to immediately go to your children during a time of crisis and take care of them until the long-term guardian is notified and appointed by the court according to your long-term guardianship nomination.

If your children are in the care of someone like a babysitter without legal authority to have custody of them, the police will have no choice but to call Child Protective Services and take your children into the care of the authorities.

From there, your children could be placed in the care of strangers until your named long-term guardian shows up, or until the court decides on an appropriate guardian.

This is an area where plans that only name a legal guardian through a Will typically fail. Beyond naming just a long-term guardian, you need a short-term, temporary guardian who is named as the first responder and knows exactly what to do if something happens to you.

Once you have chosen your long-term guardian, it is imperative that all temporary caretakers know exactly how to contact them. This precaution is not just about your death—it also covers your incapacity and any other situation when you are unable to return home for a lengthy period.

Practical Considerations of Naming Guardians

The first thing to think about is the fact that this person could raise your kid! If that happens, your child will be informed by your guardian’s values and beliefs.

Does the guardian share your core values and act in a way that is decent and respectable by your standards? What sorts of things do they genuinely value, and would they be willing to take the time to instill those values to your child?

Think ahead to the near or distant future — can you see your potential guardian making enough money to support your child?

Are they hard-working and responsible enough to take on the duty of raising and supporting a child? It is hard to instill that motivation in someone without kids until it is their responsibility, too.

Give strong consideration for those who will be able to support your family through thick and thin.

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 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.  This will get you set up with the basics of a Family Estate (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.

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.

What Happens at the End of a Temporary Guardianship?

A temporary guardianship only has a legal effect for the designated time or until the specified condition is met.

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.

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 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.

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.

How does Guardianship Work With Divorced Parents?

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.

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.


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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.

Are There Situations Where Family IS NOT a Good Plan for Temporary or Permanent Guardianship?

Absolutely!  Here are a couple of examples.

Your Family Has a History of Abuse

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

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

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

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

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

Adopting Your Children Would Create a Financial Hardship

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

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

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

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

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

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

Your Family is Unwilling or Unable to Adopt Your Children

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

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

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

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

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

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

What Guardianship Forms Do I Need to Complete NOW to Protect My Children?

 

1)  A Last Will & Testament: A last will and testament may be the most important form you can have in your estate plan.

Your will is not only the place for you to outline what happens to your property after you die, it is also where you might name a guardian for your children (or pets), identify someone to handle your property after death on behalf of your children, and identify an executor to manage your property from the time you die until your estate is settled.

2)  Temporary Guardianship 

3)  Letter of Instruction: One more guardianship form that gets overlooked is a letter of instruction. This is the place where you explain your hopes and expectations for how your children are raised.  These include decisions about your children’s education, activities, and religion.  Be sure to update this letter as your children grow and their interests and needs change.  Also, make sure you share and discuss this letter with your chosen guardian(s) so there are no surprises.

Create a Plan and Keep Your Family Protected

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.

In the worst case of the worst case.  A judge who doesn’t know you or your wishes will be forced to make decisions for your children. Without your input.  That’s what could happen if you don’t establish a family estate plan with strong, thoughtful, guardian nominations.

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?

A Guardianship Attorney Knows the Processes

Filing for guardianship can be time-consuming. The guardianship process might include petitions, hearings, and evidence – and may even face challenges from multiple parties seeking guardianship of your children.

A good guardianship lawyer will help you or your preferred guardian expedite this process. If like Lilac City Law, the guardianship attorney is the drafter of the plan and other aspects of the incapacitated or deceased’s estate plans, they will understand how the guardianship proceedings play into the full scope of this transitional period.

You can imagine that this process, can get complicated very easily. Especially if minors, money, or assets are involved. The best thing you can do to mitigate potential issues ahead of time is to gameplan, with an experienced attorney, how things would work out in a worst-case scenario.

Lilac City Law Is Your Guardianship Planning Law Firm in Washington & Idaho

We are here to help you find peace with the unknowns that the future throws your way.  That’s why we put so much effort into informing you of the process through this blog. We are passionate about building and protecting strong families.  Please reach out to us by phone or through the contact form below.  We’ll get you set up immediately with a friendly and welcoming estate planning lawyer that will walk you through this process step-by-step.

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 Family Estate 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.

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 family estate 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 of 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 Family Estate 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

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 Family Estate 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, & Family Estate 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 Family Estate 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 Family Estate Plans 

 

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The Value of Proper Protection Planning

Establishing an effective planning process with your estate lawyer is very important.  Most estate 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 to have 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 Estate 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.