By Shannon P. McNulty, Esq.
If you have young children, protecting them from dangerous situations is at the top of your list of priorities. You child-proof your home – putting locks on cabinets and drawers, installing guards on windows, and securing furniture to the wall. You teach your child safety measures as they get older, making sure they look both ways before crossing the street and requiring a helmet when riding a bicycle or scooter. As a parent, it seems you’re constantly on the look-out for potential harms.
One of the less obvious dangers to your children’s well-being is the possibility that something could happen to you that would directly affect your children. If you’re not there to care for your kids and protect them from a dangerous world, what will happen to them?
While this is a scary thought, none of us is immortal, so – just like you have a car seat to protect your child in case of a car accident – it’s important to put a plan in place to protect your kids in the event of your death or incapacity.
What should this plan look like? For most parents, a comprehensive plan includes five documents: a will, a trust, a power of attorney, a standby guardianship designation, and a healthcare proxy.
Your will should include your choice of guardian – the person you would want to take care of your kids if you passed away – as well as an alternate guardian, in the event that both parents passed away. Your will should also direct whom should receive your assets.
If you are married, you may wish to leave your assets to your spouse, and, if you and your spouse both passed away, to your children.
In addition to your will, make sure that beneficiary designations are up-to- date for retirement accounts, life insurance policies, and other assets that are distributed outside of your will.
Because children under the age of 18 cannot legally manage assets, any money left to them directly is held in a court-supervised “guardianship” or “conservatorship.” The court appoints a guardian or conservator to administer the assets and provide annual reports to the court on how much money is being held, how that money is invested, and how it is spent. In many states (including New York), these reports become part of the public record. When your child reaches the age of 18 (and in some states 21), your child receives unfettered access to any inherited funds.
In order to avoid court involvement, you may wish to leave your assets to your children in the form of a trust. Unlike assets that are left to your children directly, assets left to a trust for the benefit of your children are not subject to court supervision. Assets in the trust are administered by a trustee of your choice, who can make distributions to your children as needed. The trust also allows you to specify the age at which you want your children to have access or control over the trust assets.
Power of Attorney
If you (and your spouse) were in an accident and unconscious in the hospital, how would important family expenses be paid? Who would pay your rent or mortgage, your child’s daycare or private school, your family’s health insurance premiums, and other important expenses?
A Power of Attorney authorizes someone you trust to manage your finances for you so that these important expenses continue to be paid.
Standby Guardianship Designation
Just as a Power of Attorney provides for the management of your finances if you are incapacitated, a Standby Guardianship Designation designates someone to temporarily care for your children if you are unable to do so. This document also allows your chosen guardian to have legal custody of your children between the time of your death and the time a court appoints a permanent guardian. In some states, like New Jersey and Pennsylvania, the Standby Guardianship Designation is included in your Power of Attorney.
Healthcare Proxy or Living Will
A Healthcare Proxy authorizes someone to make medical decisions for you if you’re unable to do so yourself. This document not only ensures that you’re treated in accordance with your wishes, but also makes it easier for your family members if they have to make difficult decisions about your care.
A Healthcare Proxy differs from a Living Will or Advance Directive in that it does not require that certain actions be taken or not taken in connection with your medical care. I generally advise clients against executing a Living Will or Advance Directive because it can be too restrictive when you don’t have all of the information that may be relevant to a particular scenario. Instead, I suggest that they simply execute a Healthcare Proxy and communicate to their designated agent what their wishes are generally: Would they wish to receive artificial life sustaining measures at all costs or would the prefer that such measures not be used? By communicating your wishes to your healthcare agent, you can allow them to make the best decision based on your input, as well as all information available at the time.
While we can’t always avoid misfortune, we can put a plan in place to protect our children and make it easier on our loved ones if something does happen to us. If you don’t have these five documents in place, contact an estate planning lawyer about implementing a comprehensive plan to protect your family.
Shannon P. McNulty, Esq. is an estate planning attorney in New York City who focuses on the legal planning needs of parents with young children.
You can find her firm at www.cityparentslaw.com.
Shannon is also the founder of Savvy-Parents.com an online resource for parents who strive to make smart legal and financial decisions for their families.