Love in the Time of the Corona Virus Basic Estate Planning Considerations – Part II

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 

Even in the best of times, actuarily, the likelihood of incapacity is many times greater than the likelihood of premature death. Add a global pandemic and some friends and family members, sick or dying, and suddenly you have someone’s attention. The designation of a standby guardian for a person and his property, is relatively simple legally to prepare and execute.

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