Overview
The worst thing about the unknown is the
unknown itself! Who could have predicted the Corona virus pandemic and
the economic fallout? Not even storytellers of Zombie tales could have
predicted the timing of the Corona virus pandemic. I was impressed to
discover that even my alma mater West Point studies Zombies. You are
probably asking yourself, the same thing that I asked myself. Why would a
military academy study Zombies? What happens when all of the social
fabric and societal framework of our Society collapses. Makes sense!
Things can be fine on Monday and totally upside down on Tuesday.
The only thing that is certain is that our
days are numbered with only two things certain – death and taxes. Very
sorrowful accounts continue to emerge. Among the difficult stories that
has impacted me is a news account of a young couple. The husband passed
died from Corona virus recently while his wife who also has Corona virus
is seven and a half months pregnant with their first child. The New
York Post reported the story of a New Jersey family where seven members
became infected and four family members died with Corona virus. How
about the CCP throwing Chinese senior citizens afflicted with Corona
virus into the crematorium while they were still alive?
This is the second installment of articles
on basic estate planning. If you do not have the following basic estate
planning documents –(1) Last Will and Testament; (2) Living Will; (3)
Durable Power of Attorney; (4) Pre-Need Designation of Guardian; (5)
Guardianship Provisions for Children;(6) Healthcare Power of Attorney,
what are you waiting for?
This article focuses on the pre-need
designation of guardian or standby guardian designation. The failure of
making these arrangements or revisiting existing arrangements can have
draconian consequences. Now is the time to do something about the
problem.
Overview of the Standby Guardianship
A standby guardianship
designation allows a person who suffers from a progressively chronic or
terminal illness during his lifetime to ensure the current appointment
of a guardian of the person as well as guardianship of the incapacitated
person’s property. A standby designation allows a parent to designate a
guardian to be appointed for the care of the children as well as
designate a guardian to manage property left for the benefit of the
minor children’s care.
The need for standby
guardianship designations in modern times has proliferated as
degenerative diseases such as HIV/AIDS, Alzheimer’s, multiple types of
cancer, multiple sclerosis, and muscular dystrophy afflict so many
families. The need is critical for single parents caring for minor
children. Standby guardianship provisions allow a parent to plan for
their certain disability, incapacity or death. The only unanswered
question is “when.”
Traditionally, an
individual’s last will and testament designates guardians for minor
children after death. This designation does nothing for an incapacitated
parent. The need for lifetime guardianship can be seen in every
direction the reader looks. Single parents have a significant need. A
single parent may not have a reliable second parent to assume
guardianship of a minor child in the event of incapacity. A mother may
have children by different fathers; after her death, each father or
their relatives may try to reclaim that father’s child, thus separating a
sibling group, to the detriment of the children.
The rising number of
non-traditional single-parent households creates a minefield of planning
scenarios where this situation arises - (1) Single parent does not
remarry after a spouse dies; (2) Single parent remarries after a spouse
dies but the stepparent does not adopt the child; (3) Single person
adopts a child as a single parent; (4) Single person adopts a child and
the parent’s companion, same sex or otherwise, is unable to adopt the
child because the parent and the companion are not married; (5) Single
person bears a child as a single parent through artificial insemination
from an anonymous donor; (6) Single person bears a child and the
identity of the father is unknown;(7) Single person bears a child and
the father’s whereabouts are unknown or the father refuses to
acknowledge paternity of the child.
The uniqueness of standby
guardianship is the fact it may be brought during a person’s lifetime.
The activation of the guardianship occurs at a future point in time
prior to death, at the occurrence of a triggering event. For parents,
parental rights for a living parent are not terminated or suspended
following the time that a guardianship begins. Even if a person
nominates a guardian for minor children in his last will and testament, a
designation of a standby guardian should be executed during lifetime.
In some states, the
guardianship of a minor child may not occur until the Will is probated.
As a result, the guardianship is not effective until the probate process
is completed. An estate plan that only provides for a testamentary
designation for nomination of a guardian is a real problem. Probate even
in a small estate can last for many months. The lifetime designation
procedure preserves the reasoning of the why the chosen guardian is the
most appropriate and can be appointed following the triggering event.
The declarant designating
the standby guardian needs to file the standby guardianship with the
superior or circuit court where the declarant lives once the document is
executed. When a triggering event occurs, and a petition for incapacity
is filed with the Court, the Court clerk produces the previously filed
standby guardian declaration. The Declarant’s family petitions for the
appointment of a guardian and the Court appoints a Guardian. The standby
guardian assumes the duties of guardian unless the Court determines
that the standby guardian is unqualified based upon a demonstration of
evidence. The Court’s presumption favors the designation of the
Declarant’s selection of guardian.
The standby guardian
petitions the Court within a specified period of time (say 20 days)
depending upon the rules of the jurisdiction for confirmation of the
appointment as guardian. The Court may require the standby guardian to
post a bond with the Court. Alternatively, the Court may waive any bond
requirement. Here’s a catch. The credit worthiness requirements for
bonding are relatively difficult if a bond is required.
Summary
In the current pandemic, it might be hard or impossible to drive down the road to the local attorney’s office for a consultation. If you have any questions or would like a consultation on these basic estate planning needs, consider a virtual meeting with a lawyer. Be well and stay well!
Full Article & Source:
Love in the Time of the Corona Virus Basic Estate Planning Considerations – Part II
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