Guardian

A Minneapolis Estate Planning Attorney Examines the Importance of Estate Planning for Unmarried Couples

Estate planning is important for everyone. We simply don’t know when something tragic could happen such as sudden death or an accident that could leave us incapacitated. With proper planning, families who are dealing with the unexpected experience fewer headaches and less expense associated with managing affairs after incapacity or administering an estate after death.

If a person fails to do any planning and becomes involved in a debilitating accident or passes away, each state has laws that govern who will inherit assets, become guardians of minor children, make medical decisions for an incapacitated person, dispose of a person’s remains, visit the person in the hospital, and more. In some states, the spouse and any children are given top priority for inheritance rights. In the case of incapacity, spouses are normally granted guardianship over incapacitated spouse, though this requires a lengthy and expensive guardianship proceeding.

In today’s world, increasing numbers of couples are choosing to spend their lives together but aren’t getting married, either because they aren’t allowed to under the laws of their state, such as in the case of gay and lesbian couples, or simply because they choose not to. However, most states don’t recognize unmarried partners as spouses. In order to be given legal rights that married couples receive automatically, unmarried couples need to do special planning in order to protect each other.

In general, unmarried individuals need three basic documents to ensure their rights are protected:

1. A Will – A will tells who should inherit your property when you pass away, who you want your executor to be, and who will become guardians of any minor children. These issues are all especially important for unmarried individuals. In most states, an unmarried partner does not have inheritance rights, so any property owned by his or her deceased partner would go to other family members. Also, in the case of many gay and lesbian couples, the living partner is not necessarily the biological or adoptive parent of any minor children, which could lead to custody disputes in an already very difficult time.  Therefore, it’s critical to nominate guardians for minor children.
    
2. A power of attorney – A power of attorney (for financial matters) dictates who is authorized to manage your financial affairs in the event you become incapacitated. Otherwise, it can be very difficult or impossible for the non-disabled partner to manage the disabled partner’s affairs without going through a lengthy guardianship or conservatorship proceeding.
    
3. Advance healthcare directives – A power of attorney for healthcare, informs caregivers as to who is responsible for making healthcare decisions for someone in the event that a person cannot make them for himself, such as in the event of a serious accident or a condition like dementia. Another related document is a HIPAA waiver, which allows the persons named to discuss your care with a doctor BUT not to make decisions.

A fourth document to consider is the use of a revocable living trust.  A trust document is nothing more than a set of instructions you leave to instruct your trustee on how, when and to whom to distribute your assets.  There are numerous advantages to a trust that are especially appliable to unmarried couples:

• Avoids probate
• It's private unlike a will at probate
• You can determine where any remaining assets may go at your partner's death
• Avoids court intervention if you're incapacitated

Beyond these documents, it is also critical that you check your beneficiary designations to ensure that the proceeds of your life insurance, retirement accounds, CDs, moneymarket or bank accounts go to your loved one. While your partner may still be able to inherit even without those designations, it will take time and effort to prove to a court that he/she is entitled to the benefits.

Estate planning is undoubtedly more important for unmarried couples than those who are married, since there aren’t built-in protections in the law to protect them and their loved ones.  It’s imperative that unmarried couples establish proper planning to avoid undue hardship, expense and aggravation.

 

 

Planning for Children: Name a Guardian Now

A Twin Cities estate planning attorney discusses the benefits of using a delegation of parental authority for your minor child

You may know from prior posts that if you have minor children, you must name a guardian to care for them in the event that you (and any co-parent) are not around to raise them. Generally, you name a guardian in a will, which takes affect after your death.

What if you need to give someone the power to care for a child while you’re still alive?

Minnesota law allows you to sign a delegation granting another the authority to care for your child for a period of time not to exceed 1 year. Signing this delegation does not jeopardize your parental authority but simply grants another the temporary power to act for your child.

What powers can you delegate?

The powers conferred upon the other party through the use of the delegation of parental authority include the care, custody or property of the child. Once restriction is that the other party cannot consent to the marriage or adoption of the child.

What are the benefits of the delegation?

The delegation is a convenient way to allow for short-term custodial arrangements because they can be executed without judicial intervention (e.g. no court) as they only need to be notarized or witnessed to be legally valid.  Further, the parent does not give up any authority over the child when signing the delegation of power as the agent can only act in the place of the parent who signed the delegation.

When would you need to use a delegation?

A delegation can be used anytime you need someone else to have the ability to take care of your child.

One common use for the delegation is to grant someone the authority to handle medical needs for a child while you’re away on vacation. For instance, my partner and I went to New York for 5 days and my mother-in-law took care of our daughter while we were away. I signed a delegation of authority allowing her to make medical decisions for our daughter for the week we were gone. Then it expired upon our return. This gave us all peace of mind that in the event of an emergency, my mother-in-law could care for our daughter in our absence.

Another use is for the delegation is for situations where a lesbian couple has a child together. While the biological mother has the right to act on behalf of the baby, the non-biological parent has no rights pending adoption of the child. It can take about 6 months before the non-biological parent is able to adopt the child. During that time, the non-biological parent has no legal relationship to the child, so a delegation is one way to ensure that parent can act if needed.

A third use I’ve seen is in cases where the biological parents of a child are divorced and now dating other people. The boyfriend/girlfriend may spend a lot of time with the child but don’t have the ability to authorize medical care. A delegation can give them that power. Please note that, where there is another legal parent in the picture, the parent executing the delegation must mail or give a copy of the document to the other parent within 30 days of execution. This requirement is not necessary in cases where the other parent does not have parenting time, has supervised parenting time or has an order for protection against him/her.

 

 

 

Guardianships & Conservatorships and How to Avoid Them

If a person becomes mentally or physically handicapped to a point where they can no longer make rational decisions about their person or their finances, their loved ones may consider a guardianship or a conservatorship whereby a guardian would make decisions concerning the physical person of the disabled individual, and conservators make decisions about the finances.

Typically, a loved one who is seeking a guardianship or a conservatorship will petition the appropriate court to be appointed guardian and/or conservator. The court will most likely require a medical doctor to make an examination of the disabled individual, also referred to as the ward, and appoint an attorney to represent the ward’s interests. The court will then typically hold a hearing to determine whether a guardianship and/or conservatorship should be established. If so, the ward would no longer have the ability to make his or her own medical or financial decisions.  The guardian and/or conservator usually must file annual reports on the status of the ward and his finances.

Guardianships and conservatorships can be an expensive legal process, and in many cases they are not necessary or could be avoided with a little advance planning. One way is with a financial power of attorney, and advance directives for healthcare such as living wills and durable powers of attorney for healthcare. With those documents, a mentally competent adult can appoint one or more individuals to handle his or her finances and healthcare decisions in the event that he or she can no longer take care of those things. A living trust is also a good way to allow someone to handle your financial affairs – you can create the trust while you are alive, and if you become incompetent someone else can manage your property on your behalf.

In addition to establishing durable powers of attorney and advanced healthcare directives, it is often beneficial to apply for representative payee status for government benefits. If a person gets VA benefits, Social Security or Supplemental Security Income, the Social Security Administration or the Veterans’ Administration can appoint a representative payee for the benefits without requiring a conservatorship. This can be especially helpful in situations in which the ward owns no assets and the only income is from Social Security or the VA.

When a loved one becomes mentally or physically handicapped to the point of no longer being able to take care of his or her own affairs, it can be tough for loved ones to know what to do. Fortunately, the law provides many options for people in this situation.  
 

6 Events Which May Require a Change in Your Estate Plan

Creating a Will is not a one-time event. You should review your will periodically, to ensure it is up to date, and make necessary changes if your personal situation, or that of your executor or beneficiaries, has changed. As 2011 winds to a close, it's a great time to reflect back on the changes in your life.  Keep in mind that there are a number of life-changing events that require your Will to be revised, including:

Change in Marital Status: If you have gotten married or divorced, it is imperative that you review and modify your Will. With a new marriage, you must determine which assets you want to pass to your new spouse or step-children, and how that may relate to the beneficiary interest of your own children. During a divorce it is a good practice to revise your Will, to formally remove your soon-to-be ex spouse as a beneficiary. Under Minnesota law, a divorce will remove your ex spouse as a beneficiary of your will even if you don't actively change your will. The law treats the ex as if he or she predeceased you (insert sarcastic comment here) so you shouldn't worry that your ex will inherit via your will once the divorce is complete. But what about during the divorce?  Most clients with whom I've worked on these matters do not want their spouse to inherit while the divorce is pending, but that does not happen by law or inaction.  If you are going through a divorce, you must take active steps to ensure that the spouse you are divorcing will no longer inherit through a will that hasn't been updated to reflect your current status. While you’re at it, you should also change your beneficiary on any life insurance policies, pensions, or retirement accounts as these trump even your will. You may have disinherited your spouse from your will but if you forgot to change your life insurance policy he or she will still received the proceeds of that policy until you state otherwise. Estate planning is complicated when there are children from multiple marriages, and an attorney can help you ensure everyone is protected, which may include establishing a trust in addition to the revised Will.

If one of your Will’s beneficiaries experiences a change in marital status, that may also trigger a need to revise your Will.

Change in Relationship Status: If you enter or end a serious relationship in which you plan(ned) to leave your unmarried partner assets, you should meet with an estate-planning attorney who is well versed in the complexities of planning for unmarried couples.  I handle many unmarried clients who have planned their estates together and if they ever break up, they will need to take active steps to revise their plans. Unlike for legally married couples, there is no law to automatically disinherit a partner after a breakup.  While I do carefully draft these plans to include such provisioins, they will still be interpreted in court, which may lead to a lengthy and expensive court battle over those assets. This is the exact situation these couples attempted to avoid by coming to me in the first place. If you are entering a relationship that is not legally recognized, you should also meet with an attorney upon deciding to leave assets to each other OR if you want that person to handle medical or financial decisions on your behalf. I have experience handling nontraditional estate planning and can help you draft the right plan to protect your family.

Births: Upon the birth of a new child, the parents should amend their Wills immediately, to include the names of the guardians who will care for the child if both parents die. Also, parents or grandparents may wish to modify the distribution of assets provided in their Wills, to include the new addition to the family.

Deaths or Incapacitation: If any of the named executors or beneficiaries of a Will, or the named guardians for your children, pass away or become incapacitated, your Will should be revised accordingly.

Change in Assets: Your Will may need to be changed if the value of your assets has significantly increased or decreased, or if you dispose of an asset. You may want to modify the distribution of other assets in your estate, to account for the changed value or disposition of the asset. Further, you may wish to set up a trust to handle some of your assets to as to avoid probate or leave them to a minor.

Change in Employment: A change in the amount and/or source of income means your Will should be examined to see if any changes must be made to that document. Retirement or changing jobs could entail moving to another state, thus subjecting your estate to the laws of that state when you die. If the change in income modifies your investing, saving or spending habits, it may be time to review your Will and make sure the distribution to your beneficiaries will be as you intended.

Changes in Probate or Tax Laws: Wills should be drafted to maximize tax benefits, and to ensure the decedent’s wishes are carried out. If the laws regarding taxation of the estate, distribution of assets, or provisions for minor children have changed, you should have your Will reviewed by an estate planning attorney to ensure your family is fully protected and your wishes will be fully carried out.

In this second part of my two-part blog series, I’d like to talk about the documents I feel are the most necessary to provide your family with the protection it deserves in the event of your death.

Pulling Together the Necessary Documents

I believe that it goes without saying that everyone should have a will. What is true of most families is doubly so when it comes to members of unique families. A will is your last opportunity to direct the state of your affairs, allocate monies or items to those you wish, and to provide your desires regarding the guardianship of your underage children. Naturally, your first order of business after creating the will is to place the original will in a location where it will be easily obtainable and found—not a copy! Copies can prolong the probate proceedings and therefore prolong the length of time before your assets can be distributed to their intended receiver. As I’ve already stated, wills sometimes appoint the guardianship of your children, therefore it is extra important—especially for unique families to have original and appropriate paperwork designating the custody of children.

Finding a home for the original document depends, certainly, upon your financial situation. Not everyone can afford a safety deposit box.  I offer  inexpensive storage of your documents as part of my estate planning package, not all attorney’s do, however.  Still, depending upon the circumstances you are in there are safe storage methods for original documents, such as safe’s or lockboxes.  Any location will do as long as it can easily be found by the right people and is easily retrievable in the event of your death.  That means no burying it in the backyard like pirate’s treasure or putting it in the freezer (yes, this happens).

Many estate planners such as myself advocate the use of a revocable living trust by families that are concerned that their wishes and desires could be overruled, or that their assets would be delayed distribution in probate. Living trusts are harder to dispute in a court of law because (you) are the first “trustee” and as such establish a precedent for how you wish the trust to be managed.  As with the will, the original document is absolutely 100% necessary for your beneficiaries and trustees to have on hand.

I cannot over-emphasize the importance of these two documents for any family, but especially for unique families.  I have witnessed some of the most heart-breaking atrocities happen after people pass on.  Children are taken away from the only living parent that they have ever known.  Partners who worked to help support a family have lost homes and possessions.  I don’t mean to scare anyone—well, maybe just a little—I honestly feel that in this rather uncertain political climate those of us with unique families must take those extra steps to provide for the people we love and cherish the most.  Having an original will and/or revocable living trust helps us do just that.

You may have noticed a slight change in my firm name. Unique Family Law is now known as Unique Estate Law.

I have always focused on unique families and continue that passion. My new firm name better explains what I do for your unique family. I focus on estate planning, probate and adoption – building and protecting families.

I am proud to specialize in this important and ever-changing area and my new name reflects that focus.

I want to be sure that you, my clients, know where my expertise lies.

Welcome to Unique Estate Law.

This post concludes the series on choosing a guardian for your child by discussing when you should discuss your decisions with those closest to you.  Presumably, you are very familiar with the person you’ve identified to be your child’s guardian.  That makes you uniquely qualified to pick the proper time and format for talking to them about your decision.

The person you choose will want to follow your wishes as much as possible so please take the time to communicate them now.

One way to discuss these issues with your family, friends and chosen advisors is to break them down into small discussions.  Instead of making time for a 3 hour conversation about the decisions you’ve made perhaps you could start with a talk about why your chosen guardian is important to you and what led you to chose that person for such a crucial role.  Then you can have a follow-up conversation to talk about your hopes and wishes for your child which led you to choosing a guardian.

Chances are you will both (all) be uncomfortable and you have no control over other people’s reaction to what you’re going to say.  So why not handle the details over which you do have control?  You are asking others to listen to the most important decisions you may have to make in your life, so treat them well and lighten the mood a bit. Pick a favorite place (restaurant, park or beach) and have some food and wine (beer) while discussing these difficult topics.

While these subjects are crucial and you want to be able to convey every hope and dream you have for your child in one big meeting, keep in mind that it the subject matter is heavy and uncomfortable. And remember, if the person with whom you’re speaking looks off and says, “look, a school bus,” it may be a good time to schedule another meeting to pick up where this one left off.

 photo credit: mars-hill

Related articles

• Choosing a Guardian, Part 1: How to Choose A Guardian for Your Child (uniqueestatelaw.com)
• Choosing a Guardian, Part 2: How to Keep Your Children Out of the Wrong Hands (uniqueestatelaw.com)
• Choosing a Guardian For Your Child, Part 3: Talk to Your Chosen Guardians (uniqueestatelaw.com)
• Choosing a Guardian for Your Child, Part 4: Explaining Your Decisions to Others (uniqueestatelaw.com)

This post continues my series on choosing a guardian for your child(ren).  You know how to choose someone to (or not to) raise your child and discussed your decision with the person(s) whom you chose.  But you want to be sure to do everything possible to avoid future conflict if anything should happen to you.  In that case, I would also suggest explaining your decisions to any important family and/or friends.

Talking Points

• Why you made your choices. This allows you to do everything you can to cut down on future conflicts.  If something happens and you have left your child to your best friend, family members may wonder why and put up a fight.  But, if you explain to your family why you made your choices (location, age, values) then they will not be surprised when it happens and may even understand why you made these choices.
• Plans for future visits. This goes with the point above in that you can explain that you have made it clear to the guardian that you want them to continue with regular visits with your child.
• What you discussed with your agents. Clarify the list of discussion topics from the above list so that your family also know and understand your wishes for your child’s future.

Other Considerations

Discuss your decisions with your child(ren). If you have children that are older, you may want to explain to them who you have chosen to help them through life if anything happens to you.  In most cases you will have picked someone they know well and they will understand that choice.  Again, it will cut down on any confusion later.  If something happens to you, your children will already know where they are going and why.

Letters of explanation. Write a letter to each person whom you believe will be impacted by your choices.  This list may include your financial and medical agents, guardian(s), family members, child and/or friends.  These can be given out by your attorney at the time specified by you and will allow people to understand your choices at a time when it is crucial that they “get it.”

Providing an explanation of your decisions provides your family and friends with the knowledge that you took the time to come up with a well-though-out plan to provide for the future of your kids.  Who knows?  That may be enough to avoid future conflict, especially for estate plans for blended or gay families.

 photo credit: mikecogh

In a previous post I wrote about how difficult it is for parents to choose guardians for their children; but most parents, even if they are unsure about who they want to serve as guardians, are positive in the knowledge of who they don’t want caring for their children. You hope that creating a nomination of guardians will ensure that your child ends up in loving and capable hands if anything should happen to you, but every once in a while a situation arises where someone unsuitable—or even dangerous—will petition for guardianship.  Luckily, there are steps you can take to prevent you children from falling into the wrong hands.

If you’ve already executed (or are planning to execute) a Nomination of Guardians then you’ve taken the first step. But beyond that, you can execute something called an Exclusion of Guardians (also known as an Anti-Nomination of Guardians). In this document you name the person or people who should under no circumstances receive guardianship of your children. In the document you may want to state the reasons why your child should be kept out of the care of this person, but it is not always necessary.

Oftentimes the excluded guardian is a member of the extended family, and parents fear that executing so strong a document might be hurtful or break the peace. If this is the case then you can request that the Exclusion of Guardians be kept confidential. This means that unless and until the excluded guardian tries to gain guardianship over your children it can be stored privately, and there is no need for anyone except you and your attorney to be aware of its existence.

An Exclusion of Guardians may seem like a drastic measure, but there are many valid reasons to execute an Exclusion of Guardians; a history of abuse, financial irresponsibility, mental illness, alcoholism, or other more personal reasons. How are judges to know if a seemingly stable relative is unfit to serve as guardian unless you tell them? This is exactly what an Exclusion of Guardians does.

If you feel strongly about this issue please call my office for more information. You hope the document will never need to be used—never be seen by any eyes other than your own—but when it comes to your children you are always better safe than sorry.

If you have kids – YOU MUST HAVE A VALID WILL.  A will is where you still have some say in who will raise your child(ren) even after your gone.  You use a will to speak when you are no longer able to in order to tell the court who you believe would be the best choice to act as guardian to your kid(s) if you (and any other parent) are no longer around.

Choosing people to serve as guardians of your children is one of the most difficult decisions you will have to make—but it’s also one of the most important.  This is especially true for nontraditional families, who may not always have the advantage of biological parentage on their side.  Likewise, it is a difficult thing to contemplate if you are a single parent.

Many parents are so paralyzed by the fear of making the wrong choice of guardians for their children that they keep putting it off, hoping that one more day (or one more week, or month) will bring an epiphany of decision.  Further, partners may disagree about whom to choose.  But delaying the process and making no decision can end up being worse than making the wrong decision.

If something happens to you and you have not nominated guardians for your children then it is quite possible that your children could be put in the care of the state Social Services until a judge can appoint guardians for them, and even then there’s no guarantee the judge will place them with the people you would have chosen. This is especially true if you would prefer to pick a guardian that is not related to you by blood or marriage.

Here are few qualities to consider that may make the decision-making process a little easier:

Age: How old do you consider to be too old (or too young) to be a guardian? You might think that your aging parents are an option as guardians—but only as a last resort.

Religion/Politics: Views on religion and politics are often indicative of a moral and world view in general.  You may not find someone whose beliefs match yours exactly, but you probably know which ethical issues are deal-breakers for you and your partner.

Parenting Style: Is a consistent parenting style important?  Perhaps you think that your brother and sister-in-law have a different discipline style than you do, but are loving parents, and are therefore people you are comfortable nominating as back-up guardians.

Location: Do you want your children to remain in their familiar school and city?  If you choose permanent guardians who will have to travel from a distant location consider also naming temporary guardians who live nearby.

Family and Finances: The inheritance you leave will likely help your chosen guardian with the financial aspect of raising your child, but you will still want to consider the family and financial situation of your guardian.  Will your only child suddenly have to adjust to having siblings?  Will your guardians need to move to a new home to accommodate their larger household?

Finding someone to replace you as a parent is impossible, but there are good and loving people in your life who may serve as a close second.  Consider people for each of the above categories and make a list.  After deliberation, you might realize that the people you feel the most comfortable asking to be guardians of your children are your dear friends, the ones you met at the parent’s club, and with whom you spend most weekends and holidays. Hopefully you will also find one or two people to name as back-up guardians as well.  Please know that this nomination isn’t permanent.  You may change your mind at any time by drafting a new will.

Coming up with your list of guardians may be the hardest thing you ever do, but creating a nomination of guardians is the best thing you do for your child.