When tragedy strikes, what happens to the kids? 

by Tom Alberts Sep 26, 2018

Summary: Estate planning helps parents ensure their minor children will be taken care of if the unthinkable happens. Typically, parents execute a last will and testament that nominates a guardian who would be responsible for the care and well-being of their children upon their death. During the lifetime of the parents, plans also should be made for circumstances when they are absent from their children for an extended period – whether intentional or accidental. Parents can plan for what happens and who takes care of the kids until they return or recover and until a guardian is officially appointed and can take over parental responsibilities.

Talk to most parents, and you’ll quickly find that the care and welfare of their children – morning, noon and night – is at the top of their list of priorities.

Moms and dads stay busy with the endless issues that involve their kids every day – health and nutrition, schooling, clothing, finances and friendships among them. So, when parents of young children get around to creating an estate plan, they typically do so with an eye on the distant future. Young couples starting families may assume that an estate plan, if they even have one, won’t be put into action for many decades to come. They may assume all that’s needed is a last will and testament that would appoint a permanent guardian if that ever became necessary.

Even though traditional estate planning tends to focus on the long term, parents of minor children should consider situations in life when they are absent from them or involved in an unexpected tragedy in which one or both parents become incapacitated or die.

As part of a comprehensive estate plan, a person’s last will and testament can nominate a guardian for minor children should misfortune strike. But there are situations that may require a caregiver to be available immediately to take same-day action and make decisions on behalf of the children. Parents want peace of mind knowing ahead of time that there is someone – another family member or a trusted friend – who could serve as an interim caretaker until a permanent guardian is officially appointed by a court.

The bottom-line question to answer: Who can immediately take care of your minor children if you are away from home for an extended period, if you are involved in an accident or other crisis, or, worse yet, die suddenly? Imagine if parents are in an accident and police officers arrive at the home to check on the youngsters. It’s unlikely they’d leave the kids with the baby sitter, and child welfare authorities could get involved. Parents have planning tools available to deal with such contingencies. Given the unpredictability of what may lie ahead, planning for life events can be just as important as making plans for the end of life.

Three important documents can help provide answers and solutions to all sorts of life’s dilemmas and mitigate some of the horrors in the event of your worst nightmare. They are a power of attorney for child care; a signed document with emergency instructions; and your last will and testament.

A power of attorney for child care

There are many situations in which parents may be absent from their minor children for more than a day or two. Business trips, military service and vacations are among common reasons for short-term separations from the kids.

With a power of attorney for child care, parents can plan for many contingencies and legally authorize other family members or friends to make decisions about the child’s health care, schooling and general well-being in the short term. A power of attorney for child care is an alternative to formal, long-term guardianship. The document, usually drawn up with the help of a lawyer, can ensure that the caretaker – known as the attorney-in-fact or temporary guardian – has the ability to deal with medical and other issues that may arise during the parents’ absence. The power-of-attorney document can be worded to specify its effective dates and can define what types of decisions can be made. In most states, the power-of-attorney document will need to be signed by the parent or parents and the agent and witnessed by either a notary public or two unrelated witnesses. 

The appointment of a parental surrogate with power of attorney is limited to no more than a year in some states. For longer time periods, a hearing for full guardianship of minor children may be required. Also, power-of-attorney authorities do not survive the death of the person who granted them. So, their utility is confined to parental absences in the short term. Permanent guardians are nominated in a person’s last will and testament, and a guardian’s official appointment must be made by a probate court judge.

A signed document with emergency instructions

It’s doubtful the teenage baby sitter is among those with power-of-attorney authority over your minor children. A loved one or a trusted family friend is probably better suited to be a short-term or temporary guardian and surrogate decision-maker for absent parents – especially if a parental absence is more than an evening or a day or two.

A baby sitter may be given a phone number to call if “something happens” or the parents don’t arrive home at a certain time or can’t be reached. Beyond that, there may be no other guidance for the sitter to follow. But when an emergency occurs, there’s often little time to spare. The temporary guardian you have in mind – the one who has signed the notarized power-of-attorney document you took the time to create – may be unavailable on a moment’s notice or may need time to travel. Meanwhile, quick decisions about the kids need to be made when, for example, that police officer comes to the door with bad news.

If mom and dad aren’t coming home, an instructional bridge between the baby sitter and the temporary guardian is needed. That’s where a signed document with emergency instructions – something more than a simple note to the baby sitter of who to call – is useful. The emergency instructions should be specific to the day or evening of a parental absence. Instructions that are specific to that day or evening can ensure a responsible person is available and on standby at a moment’s notice. Otherwise, the police officer may be forced to place children in the immediate custody of child welfare officials until the temporary guardian with power of attorney can take over.

Although not necessarily a formal legal document, a written and signed statement by parents with emergency instructions can give authorities immediate guidance in the interim. Emergency instructions help ensure that every moment of time kids spend without their parents is covered.  

A last will and testament

Because wills are only effective upon death and must be proven as valid in probate court, the official appointment of a permanent guardian can take days or weeks.

In the meantime, minor children can be left in limbo – or in the custody of authorities – until their guardianship situation is resolved in the probate process.

Most married couples leave their estates to each other so that when one spouse dies, the survivor will inherit the estate and take care of the children. As part of comprehensive estate planning, parents also must consider who would take over parental obligations if they were to die at the same time. That’s why a vital component of a parent’s last will and testament is the nomination of a guardian and successor guardians for their minor children. A lawyer can provide proper advice for parents and the many options they have in providing for child rearing, management of the children’s finances, the distribution of assets and other considerations.

Conclusion

Elements of a comprehensive estate plan typically include wills, trusts, powers of attorney for health and finances and living wills. Yet many of those tools sometimes aren’t adequate to deal with the immediate needs that unexpected events in life present, especially when young children are involved.

In the meantime, prudent parents should utilize strategies that deal with immediate and short-term care of their children – like powers of attorney and emergency instructions – until a long-term plan for guardianship can be put into effect.

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life’s contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com

This article written and published by:
Legacy Assurance Plan
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University Park, Florida 34201
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