Don't Let Your Estate Planning Fall Short (Your Kids Are Counting On You)
In this fourth part of our series, Estate Planning: What You Need to Know, we’ll continue discussing what is often the most urgent concern among our clients: children. While part two of our series explained planning for incapacity and part three discussed ensuring your children are cared for after you’ve passed, this blog post will address specific, actionable steps you need to take to ensure your children are accounted for during incapacity.
Key Takeaways
A Will won't address the care of your children during incapacity
Proactive planning including a Power of Attorney for a Minor Child or Caregiver's Authorization Affidavit is necessary
Our Kids First Plan is the solution
If you’re a parent with a child or children under the age of 18, it’s important that you take specific steps to ensure your children are protected and cared for during your incapacity. (If you have children over the age of 18, you'll want to properly plan for their own incapacity. Keep this in mind and contact us if this is the case).
For those of you with minor children, listen up! This is important. To recap, we’ve discussed that a Power of Attorney will facilitate the efficient management of your financial affairs during incapacity. We’ve also discussed how an Advance Healthcare Directive will arrange for your own proper, timely and preferred healthcare during incapacity. On top of that, our series has outlined how to make sure your children are cared for after you've passed on.
However, what’s gone unanswered is the care of your children during your incapacity since neither of the previously mentioned documents address this. In order to address this issue, we’ll be discussing temporary arrangements during incapacity that go into effect immediately and last only and until that incapacity ends.
ISN'T A WILL NAMING GUARDIANS ENOUGH?
As discussed previously, your Will only names permanent guardians for your children. But what happens to your children if you become incapacitated and only need temporary arrangements? The short answer is an accident or illness resulting in incapacity could lead to Child Protective Services removing your children from their home and/or the care of immediate family members.
“Even if you do pass on or become permanently incapacitated, your Will is not effective until it is lodged with the appropriate court and the court reviews it”
It's important to note your Will only goes into effect at your death and because of this, it cannot serve as a set of guidelines during incapacity. The court isn’t even involved at that point (provided you’ve properly planned for incapacity). The parties involved are local police authorities, Child Protective Services and Foster Care representatives. This is the case even if a family member is willing and able to care for your children and the authorities are provided with a true and accurate copy of your Will. Even though this might clearly indicate your intent regarding permanent guardians, law enforcement and Child Protective Services will operate as if you did not leave instructions because, again, your Will is not effective until after you’ve passed on.
Even if you do pass on or become permanently incapacitated, your Will is not effective until it is lodged with the appropriate court and the court reviews it. It’s at that time the court will effectuate your intent by appointing a permanent guardian. As you can imagine, this takes time. All the while you children are left in the hands of people you don’t know. These are people that are overwhelmed with a high volume of cases and may not be privy to important information regarding your child's schooling, health care, etc.
KIDS FIRST PLAN
To address this issue, it’s important that you arrange for temporary care and notify the appropriate parties. This will allow someone of your choosing to care for your children immediately upon your incapacity and comfort them in those hectic first hours. Most likely, the person (or people) you choose will be the same as those noted in your Will as permanent guardians so there is a smoother transition in the event of your passing.
In order to arrange for this temporary care, you’ll need to include in your estate plan either a Power of Attorney for a Minor Child or Caregiver’s Authorization Affidavit. You may also want to include important medical information in a separate document (regarding allergies and conditions, pediatrician information, health insurance information, immunization record, and medication). These are the documents you'll want your representatives to deliver to the appropriate parties at the time of your incapacity.
Our estate plans include these documents. If you already have an estate plan, but haven’t arranged for temporary care of your children, we offer these documents separately in what we call our Kids First Plan.
Whether you’ll need the Power of Attorney for a Minor Child or a Caregiver’s Authorization Affidavit depends on whether the person you want to care for your child is in California and the child will therefore remain in the state during your incapacity.
If your child will not remain in California, you’ll need the Power of Attorney for a Minor Child which will give another adult the right to take care of your children. Essentially, you can agree with your spouse to let another adult take care of your child, and avoid having to go to court by signing a Power of Attorney for a Minor Child. This document will have to be notarized. Once completed, it arranges for physical "custody" of your child and allows the person designated to make decisions regarding education and medical care.
The person you nominate in a Power of Attorney for a Minor Child should also have the child’s health insurance information. However, keep in mind that in order to add your child to this person’s health insurance, the court will likely have to formally appoint a guardian because most insurance companies won't cover a minor who is not the child of the insured without a court order.
The Power of Attorney for a Minor Child can be cancelled by you and your spouse at any time.
Alternatively, if your child will remain in California during your incapacity, the person that you’d like to care for your child can complete and sign a Caregiver's Authorization Affidavit. If the person is a relative, then the Affidavit will allow him or her to enroll your child in school. It also gives that person the same rights a guardian would have to arrange for medical care, including mental health treatment, for your child.
If the person that will temporarily take care of your child is not a relative, the Affidavit will allow him or her to enroll your child in school, but the medical care decisions they are authorized to make are those related to school (like immunizations or physical exams required for enrollment). Also, it is only good for one year after it is signed, so you'll have to update it annually.
You, as the parent, do not have to sign the Caregiver's Authorization Affidavit and can cancel it at any time.
CLOSING THOUGHTS
Again, these documents will help ensure that your children are care for during your incapacity and are never turned over to Child Protective Services or Foster care. They will work in concert with your Will and any other documents you have in your estate plan. Again, if you have children over the age of 18, you'll want to properly plan for their own incapacity (which is beyond the scope of this blog post). Keep this in mind and contact us if this is the case.
Also keep in mind that it’s possible these documents will be met with some resistance. While schools and medical facilities are required by law to accept the Caregiver’s Authorization Affidavit, it is possible they’ll refuse to do so. This may mean that your attorney will have to go through a court-ordered process to arrange for legal guardianship. Because of this potential roadblock, it’s important that you are proactive and notify schools and medical providers of the arrangements you've made and gauge what their response will be when the time comes.
Most importantly, make sure your planning for your child's care during your incapacity in some form. If you'd like, we can handle this for you. Schedule a strategy session today and ensure you find a balance between control and protection with a comprehensive estate plan. Here's to planning smarter.
Matthew Schlau is a co-founding principal of Schlau|Rogers and an estate and business planning lawyer practicing in Orange, San Diego, Los Angeles and Riverside counties. He is a husband, father, blogger, crossfitter, and really good at helping people achieve their goals.
At Schlau|Rogers, we do more than just estate and business planning, probate and trust administration. Our objective is to provide individually-tailored plans that allow you the opportunity to reach your goals, all while minimizing headaches and risk, and maximizing peace of mind.
On our blog, you'll find useful information about estate and business planning, probate and trust administration, as well as some tidbits on personal finance, taxes, and anything else we think will help minimize headaches, worry and risk, all while maximizing peace of mind.
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