Who
Will Take Care of Your Kids if You Can't?
(what it takes to legally make sure your family is covered)
The
issue of who will be named caregiver of Anna Nicole Smith's daughter
may seem way beyond what happens in everyday life, but the reality is
many people have no idea how things would play out if they suddenly
weren't around or able to care for their own children. No one wants to
think about not being around to take care of their kids, but as a
parent it's something that really needs to be considered. Although you
may not want to "go there," not dealing with what could happen to your
children if you suddenly became incapacitated or died is far worse.
Imagine not having a say as to who would be stepping into your shoes
and caring for your kids!
First
and foremost, every parent should have a Will. Never mind if you think
you don't have enough assets to worry about or what you do own is "in
trust." A Will is where you designate who will be guardian of your
child if you and the child's other parent aren't alive. To be safe,
name a first choice and then a back-up. If you want, you can also name
the guardian as trustee - that means he/she would not only take care of
your child, they would also manage the assets and money you leave your
child. You call the shots and name who you want to do whatever "job"
you want them to do. But you need to do it now, while you can. Don't
wait. If later on you change your mind about some aspect of the Will,
you can modify it. Just remember, there are very specific rules
regarding how a Will should be drafted, signed and changed, so don't
take any chances, involve a lawyer so you know you have a valid
document!
Maybe
you are divorced or where never married to the other parent. What
typically happens in such a case is unless the other parent is deemed
unfit by the Court, he/she will be considered guardian even if you name
someone else in your Will. But remember, something could happen to that
other parent, so you need a back-up! With regards to handling the
child's money and assets inherited from you, you can certainly name
someone in lieu of the other parent. But again, you need to work with
an attorney to make sure it's done the right way.
If
you are married, you probably have oyur spouse named as the primary
beneficiary of your life insurance policy, with your children listed as
secondary. If oyu are not married, you probably wish your children to
be the primary beneficiaries. Be aware that you have to be very careful
that if you name a minor child as a beneficiary. You should be identify
on the beneficiary schedule someone to act as the "custodian" of the
money on their behalf or the insurance company may not release the
funds until the child is 18! Again, make sure you talk to your attorney
to make sure things are worded correctly.
A
Will and a life insurance policy only apply if you pass away, so what
happens if you are alive but are suddenly ill or in an accident, or
even out of the country and someone else needs to make decisions for
you r child? Can they? This is something people rarely think of and it
can be a huge issue! Let's take the simplest scenario. Say you are
heading off for vacation and have your mother or sister or even a
babysitter staying with the kids. One of the kids gets a sore throat
and has to go to the doctor. Or there is a fieldtrip with the school
that needs a signed permission slip. The person caring for your
children isn't the legal guardian, so they can't legally give
authorization for medical care or sign off on that school trip.
Each
state is different, but as of March 2007 Massachusetts parents/legal
guardians can sign an Emergency Guardianship Proxy. The law allows a
parent to appoint another person for a sixty-day period to have
authority over the minor child (but not his/her assets). This is done
without involving the Court so it's easy and doesn't cost anything. The
law is specific though, so you have to make sure you follow all the
requirements for this written Emergency Guardianship Proxy. For
instance, the document has to specify the dates it is good for, list
the Proxy (the person being named as caregiver), and list the children.
The document also must be signed by the parents/legal guardians and the
Proxy. All signatures must have two witnesses who are over 18 years of
age or older.
The
appointment of an Emergency Proxy does not take away any legal rights
from the parent, and the parent can amend or revoke the Emergency Proxy
at any time. An important thing to keep in mind though is that one
parent can't appoint an Emergency Proxy if there is another parent who
is willing and able to care for the child unless that parent also signs
the document consenting to the appointment of a Proxy.
The
Emergency Guardianship proxy is a good short-term solution, but what
about if you anticipate needing someone to care for your child long
term because, for instance, you are ill? Or you just want to have
someone named in case you become unexpectedly ill or incapacitated.
There are other legal options available such as the Standby Guardian,
but this requires Court Approval. The Standby Guardian makes a lot of
sense where there is only one living parent or one parent is ill and
there is not other parent available. Some families with two healthy
parents still want to know for sure they have designated who would care
for their children if they were alive but couldn't. Really, it's all
about planning. As parents we want to take the best care of our
children we can. And that includes using all the legal tools available
to us.
Copyright
2006 - Law Office of Gina M. Ghioldi, P.C.
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