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.

Contact

  • This field is for validation purposes and should be left unchanged.

Getting Ready for Spring Break and More with a Family Protection Plan

What If...Getting Ready for Spring Break and More!

Spring break is coming up fast! And it truly is an exciting time of year, filled with both the promise of spring and brief glimpses of Summer. With the brief pre-summer respite, families across America are going to be planning short trips, family outings, and the occasional “stay-cation!”

Whether your plans for spring break include trips to exotic locations, the mall, or simply spring cleaning, this is the perfect time of year to start thinking about what-ifs and how-would-I’s?

What If…Someone Got Hurt On Vacation?

What if on that vacation your loved one were to get hurt? How would you help them, advocate for them, get them home?

The challenges presented by a loved one who is away from home can be exceedingly difficult to work through without prior contingency & family protection planning.  In our article, What a New College Student Can Teach Us About Family Protection Planning, we covered this exact scenario.  Well, sort of.  We assumed the person who got hurt was a young college student away from home.  But the point of the vignette remains the same.   Accessing and advocating for the care of a loved one who is not a minor and is separated from you, is very difficult due to existing privacy laws and policies.

Here’s an excerpt from that article:

“In the midst of your adult child’s medical emergency, they (doctors) 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?!”

What If…Someone Back Home Got Hurt?

What if my husband and I went on a brief overnight vacation and something were to happen to my kids back at home? How would I guarantee they did not end up more traumatized by our absence? Who would look after them?

This is a nightmare scenario.  You finally get some respite time with your hubby, and because you have a young family, you are just going to be gone for a night.  A short overnight trip to a private cabin.  Just far enough from home to let your hair down and reconnect with your best friend and partner.

Unbeknownst to you, something happens to your kids’ caretaker.  The police are on the scene, paramedics rushing about, and no-one knows what is supposed to be happening with the children.  The neighbor, a good friend of yours, and the person you kinda always let know as a “backup plan” when you are leaving tries to let the police know that they can watch them until their parents return, but there’s no documentation.  The police have no idea if the neighbor is your best friend or an opportunist predator.  They cannot take a risk, and your kids are retained by the police until they can talk to a social worker and get them into an emergency shelter – either with someone they do not know or maybe even in a hotel or office building with another stranger until you return home and have to sort things out.

When you get home, what are you going to do?  Could an ounce of planning have prevented the trauma your family endured tonight?

What If…You Never Made It Home?

What if I were to get into a car accident today? Who would be able to speak for me and make my wishes known? How would I make sure a doctor or even worse, a judge, I do not know is not going to be making decisions whether or not to treat me if I were incapacitated?

Car accidents kill and critically injure tens of thousands of Americans per year.  How many of them are parents?  How many are single parents?  It happens, that is what we all need to remember.  While it probably will not happen to you, it can!  Do you have a plan to advocate for your wishes if you were to become incapacitated?

In situations like this you have to consider, do you want to be resuscitated if your injury might lead to a prolonged vegetative state?  Do you want someone else to make that decision?  OR, do you want to make sure someone, in particular, is NOT in a place to make that decision on your behalf?  These are the things of Lifetime movie dramas, but in real life, they are preventable, and you can ensure that in this type of situation that you are protected, your assets are taken care of, and your children will be protected too.  People do not have to figure out the puzzle pieces of your life and wishes because you have made sure of it.

Change Your “What-If” to “Here’s How”

In so many of our blogs, we have broken apart pieces of the what if scenarios above and tried to make them make sense. The truth is that in a real-life situation it will be several items that help you, and not just one.  You cannot look at estate planning as just a Last Will and Testament, or a Healthcare Power of Attorney.  These legal tools are part of a larger Family Protection Plan.

Your Family Protection Plan protects your family when they leave for vacation (or college) by ensuring the powers of attorney and HIPAA authorization documentation necessary are on-hand and available for use.

A Family Protection Plan is there on paper and in your lawyer’s office to ensure your children do not end up as wards of the state for even one night!  You know where you want your kids to stay if there is an emergency, get it down on paper and make your desires undeniable and uncontestable.

And lastly, your Family Protection Plan grants you a sense of protection and self-direction even if you were to become incapacitate or sadly to leave us all too early.  With your plan, you will ensure your assets are transferred to those you want them to be.  You will make sure you are taken care of.  And you will make sure that even in your absence your family remains protected.

Contact Us

Talk to us Today about a Getting Your Family Protection Plans Started!

Contact

  • This field is for validation purposes and should be left unchanged.

Read More: 
Consider Your Estate Plan Before You Travel

What if I Become Incapacitated? Who Will Take Care of My Family?

What if I Become Incapacitated? Who Will Take Care of My Family?

Not being able to take care of your family or yourself can be a scary thought. 

Who will make all the important decisions about your finances, health, and important decisions about your family?

There are some estate planning documents that will allow you to name someone to take care of you and your family. 

Let’s take a look at what they are.

Advance Health Care Directive

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

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

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

Durable Power of Attorney for Finance

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

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

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

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

Guardianship Plan

A guardianship plan will lay out what is to happen to your children should you be incapacitated. More than likely if you have a spouse, your spouse will take over the full care of your children. However, if you or your spouse is not in town, not readily available, estranged, or any number of other scenarios where you (or they) cannot immediately take custody of your children, things can go sideways, fast!

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

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

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

Trust

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

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

Talk to an Estate Planning Attorney About Family Protection and Guardianship, Today! 

Contact

  • This field is for validation purposes and should be left unchanged.