Reviewing and Updating Your Estate Plan is Crucial as Your Child Turns 18 and Heads to College

We spend years preparing our children for adulthood. One significant milestone is when they turn 18 or when they head off to college. While this transition is exciting, it also brings new legal responsibilities. When your child becomes a legal adult, it's crucial to review and update your estate plan. Ensuring your now-adult child has their own estate plan is essential to authorize you (or another trusted person) to make decisions in a crisis.

The Shift in Legal Authority

At 18, your child is legally an adult. This means that without the proper legal documents, you may not have the authority to make critical decisions on their behalf. In emergencies, this can be particularly challenging. Here are key documents your child should have:

1. Durable Power of Attorney
   This document allows your child to appoint someone (typically a parent) to manage their financial affairs if they become incapacitated. It ensures that bills are paid, and financial matters are handled without delay.

2. Health Care Directive and HIPAA Authorization
   A health care directive allows your child to designate someone to make medical decisions on their behalf if they're unable to do so. Paired with a HIPAA authorization, it ensures you can access their medical information in an emergency, enabling informed decision-making.

3. Last Will
   A Will does more than just distribute assets at death. It nominates someone to represent a deceased person’s estate. This authority can be crucial in post-mortem issues like civil and criminal legal proceedings and managing intangible property like intellectual property.

4. FERPA Release
   Under the Family Educational Rights and Privacy Act (FERPA), your child's educational records are private. A FERPA release allows you to access their academic records and communicate with the college on their behalf regarding academic or financial issues.

The Importance of Updating Your Own Estate Plan

As your children transition from minors to young adults, it's also an ideal time to review and update your own estate plan. The needs and dynamics of your family have likely changed since your children were young. Here are a few key considerations:

1. Review Guardianship Provisions
   If your estate plan includes guardianship provisions for minor children, these may no longer be necessary. Instead, focus on ensuring your young adult children are properly provided for in your estate plan.

2. Adjust Beneficiary Designations
   As your children become adults, you may want to update beneficiary designations on life insurance policies, retirement accounts, and other assets to reflect their new status.

3. Consider Inheritance Trusts
   If you want to manage how and when your children receive their inheritance, consider setting up inheritance trusts. This can provide financial oversight and protection as they navigate adulthood.

4. Update Health Care Directives
   Ensure your own health care directives and powers of attorney are current and designate trusted individuals who can make decisions on your behalf.

Taking Action

As your child prepares to leave for college, it's the perfect time to review and update your estate plan. Schedule a meeting with an estate planning attorney to discuss your family's needs and ensure all necessary documents are in place. This proactive step provides peace of mind, knowing that you can support your child in any situation and that your own estate plan reflects your current wishes.

Transitioning to adulthood is a significant step for your child and your family. By updating your estate plan and ensuring your child has the necessary legal documents, you safeguard their future and ensure you can assist them when it matters most. Contact our office today to schedule a consultation and review your estate planning needs.

Choosing A Legal Guardian For Minor Children

Parenthood is a journey of unconditional love, but it also comes with significant responsibilities. As parents, ensuring the well-being and security of our children is paramount, even in unforeseen circumstances. Selecting a guardian is one of the most critical decisions parents of minor children must make as part of their estate planning process.

Understanding the Role of a Guardian: A guardian is someone who will step in to care for your children if both parents are unable to do so. This could occur due to death, incapacity, or other unforeseen circumstances. The guardian is responsible for providing a loving and supportive environment for your children and making decisions regarding their upbringing, education, healthcare, and general welfare.

Key Considerations When Choosing a Guardian:

1. Shared Values and Parenting Philosophy

   Look for someone who shares your values, beliefs, and parenting philosophy. Consider factors such as discipline, education, religion, and lifestyle to ensure that the guardian will provide a consistent and nurturing environment for your children.

2. Emotional Connection and Relationship

   Choose someone with whom your children have a strong emotional bond and a positive relationship. This could be a family member, close friend, or mentor who knows your children well and has demonstrated love, care, and support for them.

3. Stability and Reliability

   Seek a guardian who demonstrates stability, reliability, and maturity. Consider factors such as financial stability, employment status, stability of their family situation, and ability to provide a stable and nurturing home environment for your children.

4. Willingness and Ability to Serve

   Discuss the role of guardian with potential candidates to ensure that they are willing and able to take on this responsibility. Consider their availability, willingness to relocate if necessary, and ability to provide for the physical, emotional, and financial needs of your children.

5. Communication and Shared Expectations

   Open and honest communication is essential when discussing the role of guardian. Clearly communicate your expectations, values, and wishes regarding your children's upbringing, education, and other important matters to ensure alignment and mutual understanding.

Taking Action: Choosing a guardian is a deeply personal decision that requires careful consideration and reflection. Take the time to discuss your options with your partner, family members, and potential guardians. Consider seeking guidance from a trusted advisor, such as an estate planning attorney or family counselor, to help you navigate this process and ensure that your decision reflects your children's best interests.

Selecting a guardian for your children is one of the most significant decisions you'll make as a parent. By considering factors such as shared values, emotional connection, stability, willingness to serve, and communication, you can choose a guardian who will provide a loving and supportive environment for your children, even in your absence. Remember that estate planning is a dynamic process, and it's essential to review and update your choices regularly as your family's circumstances evolve. With thoughtful consideration and proactive planning, you can provide peace of mind for yourself and your loved ones, knowing that your children will be well cared for, no matter what the future holds. Stay tuned for more insights into optimizing your estate plan for the needs of your growing family.

What to Consider When Nominating a Guardian

As we told you in our previous post on guardianship,  your elected guardian is a recommendation to a judge stating who you want to care for your child when/if you are unable to do so. 

Sometimes we meet with clients who do not have anyone who lives nearby, or they do not feel they have anyone in their network who is qualified (emotionally, financially, physically) to care for their child/children. If you fall into one of those categories, who else should you think about? 

We suggest that you think about your relatives, friends, and colleagues who share your values. We have found that this is the most important part of selecting a guardian. 

Values can include: 

• Judgment and discretion that generally aligns with your parenting

• Religion/Culture 

• Education 

• Activities that you want your child to participate in/not participate in (e.g. sports, music) 

• Comfort/ability to visit relatives and/or accept visiting relatives 

• Ability or desire to travel for vacation

You can nominate a guardian for your minor child, and your nomination holds a lot of weight. Ultimately, though, a judge needs to sign off on the nomination. And that judge will be concerned with one thing: the best interest of the child who needs a guardian. 

Judges don’t want to uproot a child who is otherwise thriving. Or send a child into a circumstance that will make the child more unstable than maintaining the status quo. However, judges are also typically reticent to send children overseas, especially if the child is a US citizen. By sending someone overseas, the court may lose jurisdiction (i.e. say over the matter). 

Having a judge oversee guardianship provides a level of protection and care for your child. If you nominated someone whose circumstances have changed drastically, you have peace of mind that your child will be placed in the best place for him or her. 

It can feel overwhelming to try to come up with a list of people who you would trust to care for your child. We can help talk this through with you so you can make the best decision for you and your family.

What is... Guardianship?

This is part of an on-going series of blog posts titled the "What Is..." series, where we attempt to explain, in simple terms, common estate planning terms and concepts. To read other posts in this series, click here.

Guardianship is a court proceeding where a court grants legal authority to someone other than a parent to care for a minor child. It’s legally appointing new parents for a minor child. This can mean taking care of the child day-to-day or it can mean taking care of the child’s finances; or, it can mean both. This typically needs to happen for orphaned children, but it sometimes happens when circumstances arise when parents are deemed unsuitable to care for their children.

Guardianship nominations are typically made in your will. When we talk about guardianship with our clients, we have a discussion surrounding who will take care of their children when they pass away or are permanently incapacited. Guardians can be family members, relatives, or even someone unrelated. They must be an adult, and must meet the court’s satisfaction to be suitable as a legal guardian, as determined by what is in the best interest of the child.

Some common issues to address when nominating guardians for minor children are the following: Is your preferred guardian a married couple? Do you want to nominate both spouses in the couple? What if they divorce, is there a preferred guardian? Are you nominating a guardian that would require your child to be uprooted from her/his life? Are you nominating someone who has the resources—both financial and time—to dedicate to your child?

Biological parents have first dibs on guardianship. And a court is most likely to grant guardianship to the biological parent, unless there is a reason not to do so. 

• In the case of a blended family, this would mean that the children of dad and ex-wife would go to ex-wife before they go to stepmom. 

• In the case of parents who are unmarried (and never were married), the child would go to the living parent, regardless of marital status. 

Guardianship is why any parent needs a will (in addition to a trust). It’s an important decision, and you need to document your choice so that it can speak when you are unable to. Do not leave it up to chance.

When It May Not Be So Simple - Family Dynamics

A lot of estate planning deals with issues other than clients’ net worth. The highest hurdles are often tethered to people and not things.

A vast majority of our clients contact us with at least one similar goal in mind: how can we care for our children when we are unable?

This may seem simple. Our clients want to leave everything leftover upon their deaths to their children in equal shares. Done deal.

Sometimes, however, there may be some… complications.

• What if their children are very young?

• What if their child has a physical or cognitive disability? 

• What if their child is incapacitated or has disabilities at the time this gift is made?

• What if their children have addiction issues?

• What if their children are financially or developmentally immature?

• What if they don’t like their children’s life partners? Or fear an acrimonious split?

• What if they want to care for their children, but not spoil them to the point where the children do not pursue their own careers or endeavors?

No one desires any of the above. But these challenges can happen, and must be met with a plan. Our clients need peace of mind that the resources left for a child actually aids that child—in the state they are in at that time, which may involve some of the above conditions. Clients need to be assured that their child’s inheritance doesn’t inadvertently hurt loved ones, or unexpectedly go elsewhere (like to an estranged spouse or lurking creditor).

Or, sometimes, the client doesn’t want anything to go to their children; or they want an uneven distribution to their children. That’s even more of a reason why they need to have a plan specifying their desires. Simply “leaving it up to them” or giving one child substantially less than another, without proper safeguards, invites litigation. And we know our clients certainly don’t want their life’s work to go into a bunch of litigation lawyers’ pockets.

We talk through these situations with clients, as well as ones with more complicated family dynamics. They are hard conversations, but so important to talk about and plan for now, while you can.

Call and schedule a consultation. We can talk about the above, or anything else specific to your situation.