Planning for Your Children

At Davis Law Firm, P.A., we are often approached by parents of young families seeking estate planning advice. While traditional estate planning focuses almost solely on asset protection and distribution, we understand that the primary concern of parents with minor children is not the protection of their assets from estate taxes or the ultimate distribution of those assets, but rather the continued care and maintenance of their minor children.

Upon the incapacity or death of the first parent, the surviving parent remains to care for the child’s physical and financial needs. However, many parents seek estate planning services to provide for their children in the event that both parents are rendered unable to care for the child due to death or incapacity. Understanding this concern, we have developed an estate planning package specifically tailored for parents of minor children to provide for the needs of each child in the event of the incapacity or death of the child’s parents.

Appoint A Standby Guardian

A standby guardian, or in some situations a temporary custodian, is an individual appointed by the parents of a minor child to take care of the child’s physical well-being during an emergency situation (such as the sudden incapacity or death of one or both parents). The standby guardian is appointed by a document executed by the parents that lists certain triggering events during which the standby guardian is authorized to take custody of the child and provide the child with all necessary care. This document can be useful to prevent the need for the child to be placed into a temporary foster home or other similar environment and can provide some stability for the child during a difficult and emotional situation. The document can also act as a HIPAA authorization for the child and can authorize the standby guardian to seek medical care for the child and access the child’s medical records. Without a HIPAA authorization, the child’s medical records cannot be disclosed to any individual other than the child’s legal guardian(s).

Appoint An Attorney-In-Fact For Each Parent

In order to ensure that the child’s financial needs are met, Davis Law Firm, P.A. recommends that parents execute durable power of attorney documents, which appoint an attorney-in-fact to manage their financial affairs if they are unable to do so. The parents can include an instruction to their attorney-in-fact directing them to use the parent’s assets as necessary to ensure that all of the child’s needs are addressed. Alternatively, if the attorney-in-fact is not authorized to provide for the child’s needs, the standby guardian may be forced to seek the appointment of a conservator for the child through the court system, which can be a lengthy and costly process that requires ongoing court supervision. It is important to note that the durable power of attorney document survives the incapacity of the parents but becomes ineffective immediately upon their death.

Nominate A Traditional Guardian Or Conservator

The parents can each execute a will nominating a traditional guardian and conservator to care for the physical and financial well-being of their minor child and directing how their assets are to be distributed upon their deaths. This allows the parents to choose which individual(s) will provide physical care and have custody of the child in such a situation and who will manage the child’s financial affairs. Parents can also create a contingency trust within their wills to restrict the child’s access to the assets until the child reaches an age pre-determined by the parents. In such a situation, the child is able to access the assets for his or her needs, but such access is allowed on a restricted basis until the child reaches the required age. Call 507-424-6330 or send us an email for a consultation.