Estate Planning is about considering and addressing the contingencies that arise as the result of a person’s death or incapacity. Of the majority of people I meet who have children, the overwhelming majority are concerned with the care of their children under such dire circumstances. That is because the vast majority of parents want what is best for their children and wish to create a situation where the tragic loss of a parent creates as little disruption in the lives of the child as possible. This is especially true of the single parent who must balance a myriad of concerns and issues when considering the needs of their children. Fortunately, there are methods for dealing with these concerns. They are through the use of a Guardianship Clause in a Will, the Standby Guardianship and the Designation of Person in Parental Relation.
In a Guardianship Clause of a Will, a parent names a guardian and an alternative to raise his or her child or children in case of the parent’s death. The benefit of this is immense. Naming a guardian is a major step in assuring that a child is raised by a close and trusted friend or family member whom the parent believes will best raise your child or children Naming a guardian also has the effect of limiting conflict over that very question because guardianship clauses are given great weight by courts in guardianship proceedings.
Parents can also add an additional layer of protection for their children by creating a Standby Guardianship document. This type of guardianship document is useful if a parent will be away on travel and becomes stranded because of war or natural disaster, or if the parent becomes incapacitated or even dies. The Standby Guardianship gives the named guardian the right to act as a child’s “parent” in the absence or incapacitation of the legal parent or guardian. It does not take away the rights of a parent, rather it provides the standby guardian the same rights as the parent.
The Standby Guardianship offers the parent flexibility because it enables a parent to establish a termination date, and can be done through writing if certain formalities are observed. The parent’s intention to name the stand by guardian in the event of the incapacitation or death of the parent is required. The child or children should be named, as well as the parent, the guardian and an alternative. The temporary guardianship generally lasts for sixty days before permission of a court is required to continue the guardianship or at the death of the parent.
Finally, if a parent will be out of the country or away on an extended trip, he or she might utilize a “Designation of Person in Parental Relation” as a method of ensuring that a competent adult has the authority to make decisions related to a child’s school or health while the parent is away. The use of HIPPA authorization in conjunction with the Designation may be considered for most effective use.
The use of guardianship documents and clauses can be used in conjunction with other estate planning documents to provide for as many contingencies as possible. They are effective and can be drafted with the help of your attorney.
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If you’ve found this blog post useful and would like to find out what would work best in your own unique situation, contact The Law Office of Robert J. Maher, P.C. for a complimentary 90-minute consultation.