The average lifespan in the United States right now is 78 years. Does this mean you can wait until you are in your 60s to start planning your estate?

Unfortunately many people seem to think so because the majority of people who have not yet attained senior citizen status are going through life without having the appropriate estate planning documents in place.
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Parman & Easterday are members of the American Academy of Estate Planning Attorneys.

If you are among the many who is going through life without an estate plan, there is more than ample motivation to stop procrastinating if you only take a moment to see the big picture.
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Parman & Easterday are members of the American Academy of Estate Planning Attorneys.

In many instances grandparents are fulfilling a dual role in the lives of their grandchildren, one as parents as well as the traditional role as grandparents. There are many reasons for this dual role as American society has evolved over the last several decades. No matter what the reason, grandparents who are raising grandchildren need to be aware of the legal issues involved concerning their responsibilities and the rights of the parents.

Legal Custody

Grandparents can become caregivers to grandchildren for a variety of reasons. If a grandchild has been removed from his or her parent’s home by authorities, the local child welfare service will look to family members, including grandparents, for temporary or foster placement of the child. Often, grandchildren are simply left with grandparents because the adult children are not capable of caring for them or abandon them.

Grandparents can seek to have legal custody of grandchildren through the courts. With legal custody grandparents then have the legal right to make healthcare, educational and general welfare decisions concerning the child; grandparents can then decide, for example, where the grandchildren will live and attend school. However, parents can continue to step in and make other decisions about the child, especially major healthcare decisions.

Guardianship

Legal guardianship is another category of custody which conveys a higher level of control over the child’s life. Guardianship allows the guardian to control all aspects of the child’s welfare; the parents no longer have any say in decisions concerning the child.

When seeking to become the legal guardian of a grandchild, grandparents must prove to the court that the parents are incapable of properly caring for the child. This step may be emotionally difficult as parents (the grandparents) must seek to prove that their own child is an unfit parent. However difficult this step may be, legal guardianship may be the best option for the long-term welfare of a grandchild.

While it may be convenient to simply care for a grandchild without regard to legal issues, it’s best to consult with a qualified attorney about obtaining legal custody or legal guardianship.

Larry Parman
Attorney at Law

Parman & Easterday are members of the American Academy of Estate Planning Attorneys.

A guardianship occurs when a judge determines, with the advice of your doctors, that you are unable to make your own medical decisions. The court will then name a guardian, who is usually a friend or family member, to oversee your health care treatment.

No Assigned Agent

If you become disabled either mentally or physically and you are no longer able to state your medical wishes, you must have someone available to speak for you. Many people use a Health Care Power of Attorney or Advance Health Care Directive to name a loved one as their Healthcare Agent. If you have not assigned a health care agent and are no longer able to manage your property or health care decisions, a guardianship will be ordered by the court.

Invalid Documents

Even if you do create a Health Care Power of Attorney or Advance Health Care Directive, you must be certain your documents are valid. Keep your agent choice up-to-date. If your preferred agent becomes unavailable, be sure to name a new health care spokesperson or have a back-up listed.

If you create your own document and it is not properly executed, a judge may consider it null and void. Your attorney can help you avoid this with a professionally drafted and correctly executed Health Care Power of Attorney. If you suspect any family member may protest your health care agent choice, you may also want to get a doctor’s statement advising that you were of sound mind at the time you signed your Health Care Power of Attorney.

Why to Avoid

If you do not choose a health care agent or if your document is invalid you will likely learn the perils of a guardianship. Family members may not agree with the court chosen guardian, and they may not like the guardian’s decisions. Your guardian may make choices that do not meet your needs or are out of line with your preferences. To avoid these headaches, always make sure you have an updated Health Care Power of Attorney – a health care agent who is aware of his or her duties, who you trust and who can be counted on during your time of need – and at least one back-up agent in case your primary agent is unable to act for you.

Larry Parman
Attorney at Law

Parman & Easterday are members of the American Academy of Estate Planning Attorneys.

Are your children under the age of eighteen? Choosing a guardian is often one of the hardest parts of estate planning. Your primary concern is the interest of your children. Your chosen guardian should be willing and able to provide a loving and stable environment for your children. And, don’t forget, this decision is more about values and protecting your children, not about who should supervise any money you have set aside for them. You might decide your selection can perform both functions, but it’s not required, nor is it always the best solution. So, how do you decide who is best for the job? You must consider all of your possibilities.

The Other Parent

If only you pass away, your child’s other parent will have custody unless other circumstances exist. If you feel that the other parent is not up to the task of proper parenting, you should speak with your attorney to determine how to designate another guardian. You may also wish to leave a letter explaining your reasons for a different guardian.

Grandparents and Family Members

In case both you and your spouse pass away at the same time, you should name the same guardian in your Wills. Most people consider grandparents first. Grandparents may be loving custodians, but you must also take their health into account. If they are older and physically unable to care for your children, look elsewhere in the family or to a family friend. If you pass over grandparents or family members for guardianship, leave a letter of explanation to help those family members come to terms with your decision. Your letter will help if any family member should protest the guardian choice in court.

Your Life Partner

Do you want your life partner to be your children’s guardian after your death? If you are a sole adopter or if the children are only yours by birth, you must make a special plan to name your life partner as the guardian of your children. Because this person is not a family member, he or she may face custody battles from your other loved ones. It is best to discuss this special guardian choice with your attorney and with your family to make sure your children remain in your home with your life partner instead of possibly being pulled out during a long custody battle

Name a Back-Up

Life is full of uncertainty. For this reason, you should always name a back-up guardian. If your chosen guardian is a grandparent, he or she may pass away before your children reach eighteen. Your specified guardian could even pass away at the same time as you, leaving your children’s care up for debate in court. Always create a back-up plan to ensure your children’s safety and happiness.

Larry Parman
Attorney at Law

Parman & Easterday are members of the American Academy of Estate Planning Attorneys.