Sunday, March 03, 2013
Estate Planning for Gay Familes, Part I: The 4 Essential Documents
Minnesota Lawyer Lists the Critical Documents Every Same-Sex Couple Must Have.
Under current Minnesota (and Federal) law, gay couples do not have any rights to such basic things as: 1) inheriting from each other; 2) making medical decisions for each other; 3) handling financial matters for each other; 4) naming a guardian for a minor child; or 5) continuing to live in the family home if only one partner is listed on the deed.
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.
Financial 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.
Advance healthcare directive – 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.
HIPAA Waiver - allows the persons named to discuss your care with a doctor BUT not to make decisions.
If you don't have these documents, your partner may be prohibited from keeping your assets, living in your home, paying your bills, or making your medical decisions.
Call now to protect your family!
Sunday, February 24, 2013
Will or Won’t? Things a Will Won’t (or Can’t) Do
A Minnesota Estate Planning Lawyer Explains the Limitations of Using a Will to Handle Your Estate
Wills offer many benefits and are an important part of any estate plan, regardless of how much property you have. Your will can ensure that after death your property will be given to the loved ones you designate. If you have children, a will is necessary to designate a guardian for them. Without a will, the courts and probate laws will decide who inherits your property and who cares for your children. But there are certain things a will cannot accomplish.
A will has no effect on the distribution of certain types of property after your death. For example, if you own property in joint tenancy with another co-owner, your share of that property will automatically belong to the surviving joint tenant. Any contrary will provision would only be effective if all joint tenants died at the same time.
If you have named a beneficiary on your life insurance policy, those proceeds will not be subject to the terms of a will and will pass directly to your named beneficiary. Similarly, if you have named a beneficiary on your retirement accounts, including pension plans, individual retirement accounts (IRAs), 401(k) or 403(b) retirement plans, the money will be distributed directly to that named beneficiary when you pass on, regardless of any will provisions.
Brokerage accounts, including stocks and bonds, in which you have named a transfer-on-death (TOD) beneficiary will be transferred directly to the named beneficiary. Vehicles may also be titled with a TOD beneficiary, and would therefore transfer to your beneficiary, regardless of any provisions contained in your will. Similar to TODs, bank accounts may have a pay-on-death beneficiary named.
The will’s shortcomings are not limited to matters of inheritance. A simple will cannot reduce estate taxes the way some kinds of trust plans can. Neither can a will protect the inheritance you leave your heirs from creditors. Perhaps your heirs are young and you would like to make sure they can get their inheritance at certain ages or intervals (marriage, education or having children).
A trust, not a will, is also necessary to arrange for care for a beneficiary who has special needs. A will cannot provide for long-term care arrangements for a loved one. However, a special needs trust can provide financial support for a disabled beneficiary, without risking government disability benefits.
A will cannot help you avoid probate. Assets left through a will generally must be transferred through a court-supervised probate proceeding, which can take months, or longer, at significant expense to your estate. If it’s probate you want to avoid, consider establishing a living trust to hold your significant assets.
Wednesday, February 20, 2013
Estate Planning Lessons, Part 2: Marriage Is Not Enough - You Must Get a Financial Power of Attorney Now
This continues my series on lessons I learned in handling the estates of my parents who both passed away last year. This post will discuss reasons why you should plan things now - do not wait!
I am an estate planning attorney with the knowledge and experience to handle complex issues but found myself running around at the last minute to take care of things for my own father. It turns out that my father had never signed a financial power of attorney. What does that mean? It means that his wife was unable to handle simple financial transactions on his behalf while he was in the hospital and unable to do things like go to the bank. But they're married you say. For many financial matters, even a spouse does not have the right to act on your behalf. For instance, a spouse may not deal with anything listed solely in your name. This generally includes such things as your retirmenet plan, stocks or bank accounts.
So, on a Thursday afternoon I was in my office (instead of the hospital) drafting a power of attorney for him to sign so that his wife could take care of some financial matters he thought were crucial in his last few days of life. Then I ran it to the hospital and got it signed and notarized.
You could look at this and note that we were lucky as he was awake, competent and alert enough to know what he wanted done and still capable of signing the Power of Attorney - even one day later and that would not have been the case. Many people simply put it off unti it's too late and the family has to fight to get a conservatorship to be allowed to make decisions they know the loved one would have wanted.
Please plan now so no one is running around trying to get these things done during such a difficult time.
Friday, December 28, 2012
Unique Estate Law: 2012 Wrap Up for a Nontraditional Law Firm
An Estate Planning Attorney Provides a Personal Review of 2012
The state of the firm
For Unique Estate Law 2012 was a fantastic year. The firm beat projections and I was able to assist more clients than ever before. I had referrals from a wide range of sources and a constant stream of clients coming through my website. I’ve done well enough to start advertising on a local radio station and in a local magazine. I have met many wonderful people and have given them guidance and peace of mind when facing an uncertain future.
Two major losses
But, for Chris Tymchuck, it was the worst year of my life.
Why was it such a bad year personally? In November both my Dad and Mom died within a week of each other. They were 66 and 64 respectively so it hadn’t occurred to the family that they might be gone so soon. While my father had battled cancer for 11 years he was in no worse shape in the end than in prior battles. And my Mom had never been sick a day in her life.
Why am I writing about this?
Why do I share such personal information on a law firm website? Because, it is a cautionary tale of what happens in a blended family when little or no preparation is done.
I was recently sharing my story with two clients and they said, “I can’t believe this is happening to you who spend your time making sure that people like us are ok and covered. You have to share your story with people so they understand that this can, and does, happen.” And they’re right.
I write this blog to assist clients and colleagues with things to consider when drafting estate plans for all types of families – both traditional and non-traditional – and the blog has paid off for me. I feel that, in keeping with the spirit in which I write I must use the lessons of 2012 to further education clients and colleagues through this medium. In short, to give back as the blog has given me so much.
Is it relevant to Unique Estate Law?
Why is my story relevant to this site? Because part of the reason that I specialize in non-traditional families is because I grew up in one – or several – and know the complications that come with being raised with in a complex web of interrelated (and sometimes not) people.
My parents divorced and each remarried and had kids with a subsequent spouse. In addition, my Mom remarried a third time and became a stepparent herself. So, that means I have a stepdad, stepmom, 3 half-brothers, a half-sister, a step brother and a step sister. That, of course, doesn’t include the “traditional” family members such as aunts, uncles and still-living grandparents. There are a lot of people to factor into planning, mourning and administering for someone.
I’ve spent the last couple of months grieving and assisting my family with working through the health care decisions, then memorials, estates and other issues associated with facing the illness and then death of parent. I plan to spend the next few posts discussing some of the lessons I’ve learned by being on the other side – education to practice so to speak – as my hope is to assist others to avoid some of the pitfalls we now face.
I can’t say that anything good has really come out of the losses I suffered this year but I will say that it confirmed my choice of profession. First, because I found relief in returning to work and assisting my clients and second because I feel that I use my law degree in the best possible way – to assist others to prepare for, and perhaps face, the worst times in their lives. For that I am grateful.
Thursday, December 06, 2012
How To Prepare for a Meeting with an Estate Planning Attorney
Preparing to Meet With an Estate Planning Attorney
A thorough and complete estate plan must take into account a significant amount of information about your assets, your family, your property, and your wishes during and after your life. When you make your first appointment with an estate planning attorney, ask the attorney or the paralegal if they can provide a written list of important information and documents that you should bring to the meeting.
Generally speaking, you should gather the following information before your first appointment with your estate planning lawyer.
List the names, birth dates, death dates, and ages of all immediate family members, specifically current and former spouses, all children and stepchildren, and all grandchildren.
If you have any young or adult children with special needs, gather all information you have about their lifetime financial needs.
For all real property you own or can reasonably expect to acquire, gather the property description, your ownership interest information, the address, market value, any outstanding mortgage balance, and the most recent tax assessment.
For any personal property of value (such as vehicles, jewelry, coins, antiques, stamps, and art), compile a list that includes a description, the physical location of each item, your ownership interest information, the market value, and any liens against the property.
If you have an ownership interest in a business, make sure you have documents showing your ownership interest in the business, the business location, the names and contact information of other owners, and 2-3 years of past profit and loss statements.
Compile a list of all your financial accounts, including: checking accounts, savings accounts, investment accounts, stocks and bonds, and U.S. Treasury notes. If any of these accounts currently have designated beneficiaries, bring that information as well.
Gather all retirement savings information, including 401(k) plans, 403(b) plans, IRAs, life insurance policies, Social Security statements, and pension information. Make sure you have the account names, account numbers, current balances, outstanding loan balances, and currently named beneficiaries.
If any family members owe you debts, compile that information.
Questions to Think About
The following are some of the first questions your estate planning attorney will ask. You are not required to have answers ready for all these questions, but because some of them are complex, it is a good idea to think through these issues before your appointment.
Who will be beneficiaries of your property?
Do you want to bequeath any specific items of property to specific individuals?
Is there anyone you do not want to be a beneficiary of any of your property?
Do you plan to make any bequests to any nonprofit organizations – university, church, charity, or other organization?
Do you know who you want to act as executor of your will?
Do you know who you want to act as trustee of any trusts you establish?
If you have minor children, who do you want to appoint as guardian?
Do you want to make arrangements for your health and financial well-being in the event you become unable to make decisions for yourself?
Do you have specific wishes for your funeral?
Are you a registered organ donor?
During your initial consultation, your estate planning attorney will review your family and financial situation, discuss your wishes, answer your questions and suggest strategies to protect your family, wealth and legacy. It is my practice at this point to also provide you with a flat-fee quote for the best plan to fit the needs of your family. This fee includes all of the listed documents and any communications/meetings with me. It is important to me that you know the exact fee for your custom-drafted plan up front so there are no surprises later!
Call now to set up your initial consultation.
Monday, November 26, 2012
The ‘Sandwich Generation’ – Taking Care of Your Kids While Taking Care of Your Parents
The ‘Sandwich Generation’ – Taking Care of Your Kids While Taking Care of Your Parents
“The sandwich generation” is the term given to adults who are raising children and simultaneously caring for elderly or infirm parents. Your children are one piece of “bread,” your parents are the other piece of “bread,” and you are “sandwiched” into the middle.
Caring for parents at the same time as you care for your children, your spouse and your job is exhausting and will stretch every resource you have. And what about caring for yourself? Not surprisingly, most sandwich generation caregivers let self-care fall to the bottom of the priorities list which may impair your ability to care for others.
Following are several tips for sandwich generation caregivers.
Hold an all-family meeting regarding your parents. Involve your parents, your parents’ siblings, and your own siblings in a detailed conversation about the present and future. If you can, make joint decisions about issues like who can physically care for your parents, who can contribute financially and how much, and who should have legal authority over your parents’ finances and health care decisions if they become unable to make decisions for themselves. Your parents need to share all their financial and health care information with you in order for the family to make informed decisions. Once you have that information, you can make a long-term financial plan.
Hold another all-family meeting with your children and your parents. If you are physically or financially taking care of your parents, talk about this honestly with your children. Involve your parents in the conversation as well. Talk – in an age-appropriate way – about the changes that your children will experience, both positive and challenging.
Prioritize privacy. With multiple family members living under one roof, privacy – for children, parents, and grandparents – is a must. If it is not be feasible for every family member to have his or her own room, then find other ways to give everyone some guaranteed privacy. “The living room is just for Grandma and Grandpa after dinner.” “Our teenage daughter gets the downstairs bathroom for as long as she needs in the mornings.”
Make family plans. There are joys associated with having three generations under one roof. Make the effort to get everyone together for outings and meals. Perhaps each generation can choose an outing once a month.
Make a financial plan, and don’t forget yourself. Are your children headed to college? Are you hoping to move your parents into an assisted living facility? How does your retirement fund look? If you are caring for your parents, your financial plan will almost certainly have to be revised. Don’t leave yourself and your spouse out of the equation. Make sure to set aside some funds for your own retirement while saving for college and elder health care.
Revise your estate plan documents as necessary. If you had named your parents guardians of your children in case of your death, you may need to find other guardians. You may need to set up trusts for your parents as well as for your children. If your parent was your power of attorney, you may have to designate a different person to act on your behalf.
Seek out and accept help. Help for the elderly is well organized in the United States. Here are a few governmental and nonprofit resources:
www.benefitscheckup.org – Hosted by the National Council on Aging, this website is a one-stop shop for determining which federal, state and local benefits your parents may qualify for
www.eldercare.gov – Sponsored by the U.S. Administration on Aging
www.caremanager.org -- National Association of Professional Geriatric Care Managers
www.nadsa.org – National Adult Day Services Association
Monday, November 26, 2012
Estate Planning: Leaving Assets to a ‘Troubled’ Heir
A Minnesota Estate Planning Attorney Discusses Complex Estate Planning Techniques
If you have a child who is addicted to drugs or alcohol, or who is financially irresponsible, you already know the heartbreak associated with trying to help that child make healthy decisions. Perhaps your other adult children are living independent lives, but this child still turns to you to bail him out – either figuratively or literally – of trouble.
If these are your circumstances, you are probably already worrying about how to continue to help your child once you are gone. You predict that your child will misuse any lump sum of money left to him or her via your will. You don’t want to completely cut this child out of your estate plan, but at the same time, you don’t want to enable destructive behavior or throw good money after bad.
Trusts are an estate planning tool you can use to provide an inheritance to a worrisome heir while maintaining control over how, when, where, and why the heir accesses the funds. This type of trust is sometimes called a spendthrift trust.
As with all trusts, you designate a trustee who controls the funds that will be left to the heir. This trustee can be an independent third party (there are companies that specialize in this type of work) or a member of the family. It is often wise to opt for a third party as a trustee, to prevent accusations among family members about favoritism.
The trust can specify the exact circumstances under which money will be disbursed to the heir. Or, more simply, the trust can specify that the trustee has complete and sole discretion to disburse funds when the heir applies for money. Most parents in these circumstances discover that they wish to impose their own incentives and restrictions, rather than rely on the judgment of an unknown third party.
The types of conditions or incentives that can be used with a trust include:
Drug or alcohol testing before funds are released
Payments directly to landlords, colleges, etc., rather than payment to the heir
Disbursement of a specified lump sum if the heir graduates from university or keeps the same job for a certain time period
Payment only to a drug or alcohol rehab center if the child is in an active period of addiction
Disbursement of a lump sum if the child remains drug free
Payments that match the child’s earned income
If you are considering writing this type of complex trust, it is advisable to seek assistance from a qualified and experienced estate planning attorney who can help you devise a plan that best accomplishes your wishes with respect to your child.
Wednesday, October 10, 2012
Preventing a Will Contest & Preserving Peace in the Family
Preventing a Will Contest & Preserving Peace in the Family
The purpose of writing a Last Will and Testament is to make sure that you – and not an anonymous probate court judge – have control over the distribution of your property after your death. If one or more family members disputes the instructions in your will, however, then it is possible that a probate court judge may decide how your assets will be distributed.
Protect yourself, your family members and your last wishes by taking steps to prevent a will contest after your death. Will contests (this is the legal term used to describe a family member’s challenge to the contents of a will) can be based on one or more of these claims:
The will was not properly executed
The willmaker was under improper or undue influence from a beneficiary
The willmaker or another person committed fraud
The willmaker lacked the mental capacity to make the will
There are a number of steps that you can take to help prevent will contests based on any of those claims. It is important to remember, though, that different states have different laws regarding wills and probate. What is advisable in one state may be inadvisable in another, which is why the first suggestion for preventing a will contest is:
Obtain qualified legal advice regarding your estate plan. Estate planning has become a popular “do it yourself” legal task, but you should at least consider having your will reviewed – if not written – by a qualified estate planning lawyer. Writing your will with the help of an estate planning attorney will also ensure that your will is a properly executed and valid legal document.
Don’t delay estate planning. Plan your estate while you are in good health – “of sound mind and body.” If you create your will while your physical or mental health is failing, your will becomes vulnerable to claims that it is invalid due to your lack of mental capacity.
Consider a no-contest clause. A no-contest clause (also called an in terroreum clause) in a Last Will and Testament disinherits anyone who contests the will. Keep in mind, though, that no-contest clauses are valid in some states but not in others.
Consider using trusts. Trusts are becoming more widely usedin estate planning , and are useful for various situations. A will is a public document once it is filed in probate court, and the public nature of the document can give rise to disputes and will contests. In contrast, a revocable living trust is a personal and private document that does not have to be filed as a public record. Furthermore, lifetime trusts can be used to provide financially for “troublesome” beneficiaries who might otherwise spend through their inheritance. Lifetime trusts are flexible and can link financial inheritance to the accomplishment of goals that you set forth in the trust documents.
Write your will independently. To avoid claims of undue influence after your death, make sure you write your will in circumstances that are clearly free from interference by family members or other beneficiaries. Avoid having beneficiaries serve as witnesses, for example, and don’t allow beneficiaries to attend your meetings with your estate planning attorney. This is especially important if you are under the care of a family member who is also a beneficiary.
Be of sound mind and body. At the time you write and sign your will, you can ask your physician to perform a physical examination and certify that you are mentally competent to execute your will. Another option is for your attorney to ask you a series of questions before you sign your will and document that the questions were asked and answered. It may also be a good idea to make a video recording of the process of signing your will, as another way to prove mental competency.
Answer your family’s questions. Consider sharing your intentions with your family and other beneficiaries. If you explain the reasons for the decisions you made regarding bequests, you may help prevent will contests after your death. Instead or in addition, you may write a letter to your beneficiaries that will be read at the same time your will is read.
Keep your will dust-free. Once your Last Will and Testament and other estate planning documents are complete, don’t just file and forget them. Review your will with an attorney at least once a year and make any necessary changes in a timely manner.
Tuesday, September 11, 2012
Preserving and Protecting Documents Is Part of Healthy Estate Planning
A Twin Cities Estate Planning Attorney Explains How to Store Your Estate Planning Documents
In the unsettled time after a loved one’s death, imagine the added stress on the family if the loved one died without a will or any instructions on distributing his or her assets. Now, imagine the even greater stress to grieving survivors if they know a will exists but they cannot find it! It is not enough to prepare a will and other estate planning documents like trusts, health care directives and powers of attorney. To ensure that your family clearly understands your wishes after death, you must also take good care to preserve and protect all of your estate planning documents.
Did you know that the original, signed version of your will is the only valid version? If your original signed will cannot be found, the probate court may assume that you intended to revoke your will. If the probate court makes that decision, then your assets will be distributed as if you never had a will in the first place.
Where should you keep your original signed will? There are several safe options – the best choice for you depends on your personal circumstances.
Keep it at home
You can keep your will at home, in a fireproof safe. This is the lowest-cost option, since all you need to do is purchase a well-constructed fireproof document safe. Also, keeping your will at home gives you easy access in case you want to make changes to the document. There are two main disadvantages to keeping your will at home:
You may neglect to return your will to the safe after reviewing it at home, which increases the risk it will be destroyed by fire, flood, or someone’s intentional or accidental actions.
Your will could be difficult to find in the event of your death, unless you give clear instructions to several people on how to find it, which then creates a risk of privacy invasion.
Safe deposit box
You can keep your will in a safety deposit box. Most banks have safety deposit boxes of various sizes available to rent for a monthly fee. Banks, of course, tend to be more secure than private homes, which is one primary advantage. Also, if you keep your will in a safety deposit box, then after your death, only the Executor of your estate may access the original will. Thus, the will is strongly protected against alteration or destruction, because family members may have access to a copy but only the Executor will have access to the all-important original.
If you do keep your will and other estate planning documents in a safety deposit box, try to do so at the same bank where you keep your accounts and inform your executor of its location. This will streamline the financial accounting process.
Clients of Unique Estate Law have the option to store their documents online using Legal Vault. If you enroll in Legal Vault, you will receive a wallet card that shows you have executed a valid medical directive. The card also provides hospital personnel with a username and password that will allow them to access your medical directive and other medical information (as stored by you) in order to immediately notify your medical agent.
Further, you may store all of your estate planning documents online with Legal Vault and provide someone with postmortem access. This means that another will have full access to any documents you have uploaded to the site if anything happens to you. Your surviviors will not have to wonder whether you executed a will, or any other estate planning documents. But, keep in mind that online storage “safes” may be an excellent back-up, but you must still find a secure place to store the paper originals.
Store your will with the county
By law, Minnesota courts provide a service allowing you to store your will with them for a nominal fee (the current fee for Hennepin County is $27.00). After death, your surviving family may obtain the will from the county by providing proof of death. This is a great way to store the will that can provide you with inexpensive peace of mind.
Some of my senior clients have a trusted child hold their estate planning documents. Generally, they choose the child who is acting as their medical or financial agent to ensure that the proper person has the documents when needed. It is also common for people to store documents in a freezer bag in the freezer. While I don't recommend this approach, it can work so long as someone knows where they are located.
As you can see, there are many different choices when it comes to storing your estate planning documents. The most important thing to remember is that your survivors must know you have estate planning documents and where you stored them. Please be sure to tell important people that you drafted a plan.
Monday, August 13, 2012
Estate Planning for Unmarried Couples
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:
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.
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.
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:
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.
Friday, August 10, 2012
Planning for Children: Name a Guardian Now
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.
From within Hennepin County Unique Estate Law represents estate planning and elder law clients throughout Minnesota, including Minneapolis, Edina, Bloomington, St. Louis Park, Minnetonka, Plymouth, Wayzata, Maple Grove, St. Paul, and Brooklyn Park. The Minnesota law firm of Unique Estate Law focuses on all aspects of estate planning, including specialized wills, trusts, powers of attorney and medical directives for married couples, young families, blended families, single parents, gay families and those going through a divorce. Unique Estate Law also handles probate administration, asset protection, Medical Assistance planning, elder law, business succession planning, adoptions and cabin planning.