Health Care Representatives for Minor Children

It’s the stuff of parents’ worst anxieties when headed out of town for business or vacation, leaving their minor children at home in the care of a friend of family — their child is injured or becomes sick in their absence. Imagine, leaving with your spouse on a long-planned vacation, many states away or even out of country, leaving your children safely in the care of beloved grandparents. But, life happens, and one child breaks his arm at baseball practice, while you are thousands of miles away and cannot immediately return home. Grandma takes your son to the hospital, where all but necessary emergency treatment is denied because Grandma does not have legal authority to grant treatment on behalf of your minor child. You call the hospital in attempt to authorize treatment, but unfortunately, the hospital will not accept your verbal authorization, requiring a written authorization, properly executed and witnessed. After many phone calls, a faxed authorization form, and locating witnesses in your hotel lobby, hours after the accident you occurred, you finally get the documentation required by the hospital to proceed with treating your son. Unfortunately, I have heard first-hand stories of a real life occurrences of this very scenario.

This anxiety producing scenario can be avoided with advanced planning. Execute an Appointment of Health Care Representative for Minors, authorizing a trusted family member or care giver to make health care decisions in the event that you can not make these decisions for your minor child. I recommend that parents with minor children consider including preparation of an Appointment of Health Care Representative for Minors as part of their estate planning package.

My Child is 18 Years Old! Estate Planning for Young Adults

Having a child attain the age of 18 brings with it the legal age of majority and autonomy in her decisionmaking.  One aspect of this age of “adulthood” that may not be readily apparent to both the now-adult child and her parents is the immediate loss of the parents’ ability to serve as a decisionmaker.  Simply stated, as the “child” is now an adult, the young adults’ parents no longer have access to and ability to serve as a financial or medical decisionmaker for their child.  As this article explains, this can have serious implications in the case of an adult child who becomes incapacitated for any reason — illness or accident — even of a temporary nature.  Well planned parents and their adult children should consider getting, at a minimum, incapacity planning documents in place, which includes an Appointment of Health Care Representative and Power of Attorney document.

Joan Rivers and End of Life Planning

Fellow legal bloggers Danielle and Andy Mayoras (find them here and here) have a great article today about end-of-life lessons to be learned from Joan River’s passing.  All estate plans should include planning for incapacity and end-of-life decision making.  The Mayoras’ article excellently explains why this is so important.

As they explain:  “Too many people think that estate planning is all about wills and trusts.  Far from it, end of life planning is often more important.  In fact, every adult over the age of 18 needs to have some type of advance directive in place.”   The consequences of not having such documents and place, can include a public and invasive guardianship proceedings through the courts, in order for the family to be legally appointed the decision makers.  In the case of facing an end of life decision, such as in Joan Rivers’ example, this process could be particularly painful and compound the grieving process of the family forced to make such decisions.  (Can you imagine the pain of having to go to court to obtain a guardianship while your loved one is near life’s end?)  Further, as the Mayoras explain, the guardianship process “can set the stage for a nasty family fight if people disagree on termination of life support (Terri Schiavo being a prominent example), or even a complete refusal to allow the life support to end, if the patient’s wishes were never reflected in writing.”

Bottom line: incapacity planning, including appointing a decisionmaker and stating your end-of-life wishes through a Living Will, are essential to any solid estate plan.  Such planning is an invaluable gift to yourself and your loved ones.

What Can Celebrity Deaths Teach Us?

High profile celebrity deaths are regularly in the headlines. The ongoing legal battle faced by Anna Nicole Smith, and now her Estate, continues.  That case included allegations of interference with inheritance.  Casey Kasem‘s last months raise questions about guardianship, elder abuse, fiduciary roles, and end of life decision making.  Philip Seymour Hoffman‘s estate plan, lacking in planning for the Federal Estate Tax and failing to include a child born after the his Will was executed, was largely seen as incomplete protection for his family.  Similarly, James Gandolfini’s Will was panned.  As one commentator summarized, “the most common tag-line is that his will is a tax disaster.”   In contrast, Robin Williams’ estate plan, is viewed by some as an example of a solid planning.

These estates serve as reminders for all of us to revisit our estate plans.  Key among the lessons are that even if you have a plan in place, you need to revisit that plan every couple of years or after a change in life, such as after the birth of a child or a divorce.  Questions to consider:

Do you have an estate plan?  Do you have a Will?  Could a Trust be a helpful instrument for you?

When is the last time you reviewed your plan?

Are all of your children included in your plan?  Who do you name as their guardians?  Are these still the right people?

Do you have trusts to provide for your children until the are the appropriate ages to handle money?

Do you have incapacity documents in place?  Who have you named to be decisionmakers in the event you are incapacitated?  Are they still the right people?

Could your Estate be subject to Federal Estate Tax?  Do you have a plan in place to minimize potential Federal Estate Tax liability?