If you don’t take the appropriate planning, guardianship laws could prove problematic for you or your loved ones. No one wants to be in the position of having to go through a court battle when their loved one is in need of support or additional care. If you don’t have an appropriate estate plan drafted with the help of an estate planning attorney in your area, however, your state’s guardianship laws can become problematic sooner than you expect. Determining when someone is in need of a guardian can be a difficult question in and of itself. A person who has recently been diagnosed with dementia might need to have a guardian created for them, but this can raise questions about whether or not the person has enough clarity of mind in order to pass on this power to someone else.
Dealing with issues such as a diagnosis of dementia or Alzheimer’s can rattle families to their core and things that can easily fall of the list are planning for guardianship, but it is an important question to consider regarding who may be able to step in and take care of a loved one who could very shortly be unable to take of themselves.
Establishing circumstances related to guardianship is critical because it can be hard to make the call about when a person has passed the point of being able to take care of themselves. Depending on the speed at which a diagnosis of dementia or Alzheimer’s advances, this can come sooner or later, but everyone involved in this situation needs to be informed about their rights and further details.
The support of a lawyer can help to clarify any misconceptions that you might have surrounding the process of establishing guardianship. Many people are aware of the different types of guardianship nightmares that can develop in your individual state. Make sure that you avoid this by considering ample steps that you can take to protect yourself and your loved ones.
Actor Paul Walker of Fast & Furious fame, who died in a car accident in November, left his entire fortune of $25 million to his 15-year-old daughter, who had recently left her mother and childhood home in Hawaii to live with him in California.
Walker did not leave a dime to any other family members or even his girlfriend.
But Walker’s will did have one catch. His daughter, Meadow, will not be able to touch the money until she becomes an adult. Nothing unusual there, except that Walker named his own mother to be Meadow’s guardian.
According to an article on cafemom.com, this is a bit unusual and could be tricky. One wonders why he named Meadow’s grandmother as her guardian rather than Meadow’s own mother, Rebecca Soteros.
However, the matter will be decided by a judge later this month. In the meantime, Meadow is back in Hawaii living with her mother.
Walker was a very private person and not much is known about the circumstances of his breakup or the decision to have Meadow come live with him in California.
Estate planning is often a difficult topic to approach. Not only is it difficult for many people to discuss the reality of their own mortality, but the process of estate planning can quickly become confusing and overwhelming. If you have not prepared your estate plan yet, a recent article offers four steps to take care of most of your planning needs:
1. Prepare a Master Information Document: A master information document should include all of the information your executor will need in order to locate and settle your accounts. This document is simple to create, and will save your executor from the nightmare of an unorganized estate. Importantly, be sure to keep this document in a safe place so that it does not fall into the wrong hands.
2. Consider Purchasing Life Insurance:Life insurance is an important estate-planning tool for anyone who leaves behind dependents. The proceeds can keep a person who relies on your income from financial ruin.
3. Draft a Will that Considers Important Possessions: If you have any items that carry a sentimental or financial value, chances are you will want to dictate who receives that item after your death. Additionally, if you do not account for the distribution of such items, you may trigger a feud among your family members.
4. Designate a Guardian for Any Minor Children: If you have minor children, guardian designation is the single most important part of your estate plan. Carefully select the person you would trust to care for your children should you become unable to do so and discuss your designation with that person before putting it in your will.
The birth or adoption of a new child is a frenzied and joyous time in the parents’ lives. Understandably, estate planning is often the last thing on the minds of expectant parents. However, as a recent articleexplains, certain parts of estate planning are essential for a growing family. Expectant parents should consider at least the following two questions, and plan accordingly before it is too late.
Who Would You Trust to Care For Your Children?
Should the unthinkable happen and neither you nor your partner are able to care for your children, it is important that you have a plan in place. If you do not designate a guardian for your children, or the guardian you have designated declines to serve, the court will select the person who will care for your children. This may or may not be the person that you would have chosen.
Do You Have Life Insurance?
Life insurance is an important part of the estate of many parents. Life insurance provides a guaranteed sum of money that can finance the care of your spouse and children. For extra protection, you can designate that if you and your spouse pass on before your children reach the age of majority, the money will be kept in trust and distributed only by a designated trustee. You can further designate that, should you die after your children reach the age of majority, they can simply receive the sum outright or in installments at various ages such as 21, 25, and 30. Yet another popular option is to allow the money to stay in trust forever to maximize asset protection, while ensuring financial needs are met.
Who should raise your children if for some reason you and your spouse are unable to do so? It’s not an easy question to answer, but if you have young children, it is a topic you most certainly should address in your estate plan. Otherwise, a court will decide, and their decision will probably not be the same as the one you would have made, and may not even be in the best interests of your children.
Some of the most important issues to consider when choosing a guardian include:
Does the prospective guardian have a genuine interest in your children’s well-being?
Does the prospective guardian share your values?
Can he or she handle the role physically and emotionally? What about financially, if you cannot provide him or her with enough assets to raise your children?
Does the prospective guardian already have children of his or her own? Will he or she be able to make enough time to adequately care for and look after your children?
Where does the prospective guardian live? Would that be a good fit for your children? Would having to move far away make an already stressful situation for your children even more so?
Is it essential that all your children share the same guardian? Most parents say yes, but in some circumstances, such as when your children are of significantly different ages, naming more than one guardian is an option.
Should you choose one person to act as personal guardian and another to manage the financial arrangements for your children-that is, name a second person to act as Custodian or Trustee?
In certain situations, such as when the best surrogate parent for your children is not necessarily the best person to handle financial matters, this option is worth considering.
Perhaps most important of all, have you spoken to the prospective guardian about taking on such a responsibility, and does he or she seem readily willing to do so?
What if you and your child’s other parent cannot agree?
It goes without saying that you and your child’s other parent should name the same guardian for your children. But what if you are divorced, or for whatever reason you and your spouse cannot agree on the most suitable guardian? Naming different guardians will lead to a battle in court should you and the children’s other parent pass away while your children are still minors. The decision over guardianship will then be in the judge’s hands.
Part of the solution to this situation is to leave a Letter of Explanation, outlining your reasons for choice of guardian. It is important to have an experienced attorney assist you in the drafting of such a letter, but here are the basics of what should be included:
Who the children would prefer, that is, the relationship between the children and the prospective guardian
Why your choice of guardian will best meet the children’s needs, particularly with regard to providing stability and proper care
The values and moral fitness of the prospective guardian
The physical and financial ability of the prospective guardian to raise your children
We have helped many couples select the ideal guardian for their children and designed wills or other planning documents to ensure their wishes are carried out. We welcome the opportunity to do the same for you.