Who finds it pleasant to think about their children being raised by someone else? No one. However, if you don’t tell the court who to appoint as guardian, then a judge you do not know, and who does not know your family, will decide for you. Would your child prefer to have a stranger make that decision? No. This choice is yours to make. Get paper, a pen, and try this approach.
- List everyone who is a possibility as guardian, even a remote possibility. This might include friends. Single people. People with no kids. People with grown kids. People who live far away.
- Next, take the Value Majority test. List five values that are most important to you, and choose candidates from your list who share at least three of these values with you. This is my partial values list as an example to get you started: parenting style; attitude about education, work, money; faith, religion practices, beliefs; social values; attitude about closeness with family, friends.
Now you should have a list of people who rank as good candidates. You should choose at least three. What if you have several people who meet the test and make good candidates, but you wish to shorten your list? Here are some of my observations. First, it can be disruptive to uproot children from everything that is familiar to them, so if Joe lives in your area but Jane lives across the country, choose Joe. Second, a court might not approve a person you designate who has a history involving alcohol or drug addiction, or a criminal record, even if they do share three out of five of your values. Third, please do not name married couples. Divorce happens to the seemingly best couples, and you do not want your child caught up in a custody battle. If Mike and Carol Brady both share your values and made your list, choose one as guardian, the other as successor guardian. Fourth, choose candidates who are likely to keep your children in touch with your family.
Trying this approach should result in at least a few guardian possibilities. This issue is difficult to think about, but thinking about it is exactly what needs done.
Contact me at email@example.com if you want to get started on a will to name your guardians.
- You have no estate plan! I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney). If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones. This could cause unnecessary and unexpected costs, delays, and loss of privacy.
- If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan. Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
- Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive? Are they still capable of serving? Do you still want them to serve?
- Review your beneficiaries. Review who you listed to inherit from you. Are they still alive? Do you still want to bequeath to them, or add additional beneficiaries? You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
- Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.” What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts? What happens to money in your etsy or ebay store’s PayPal account? Do you want your spouse to have access to your Facebook account at your death? Or your emails? These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
- Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless. You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust. You can fund while living, or set it up so that this funding occurs at your death.
- Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney. Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.
If you would like to discuss your estate plan, contact me at firstname.lastname@example.org.
I received several inquiries after my recent post on Letters of Intent, or instructions for guardians or caretakers of your children or pets. I have specific forms I have developed for children, pets, and children with special needs. If you would like pricing for those, email me at email@example.com, or message me through my law office’s Facebook page.
Letters of Intent can be created by you (versus an attorney), and many parents have done just that. These can be in-depth, broad, more limited–it’s up to you. To guide you, here are links to three examples, all from moms who were dying of cancer:
- A simple, specific, instructional Letter of Intent, “Mummy Manual”: http://www.dailymail.co.uk/news/article-346306/The-mummy-manual.html
- An in-depth, broad, far-reaching Letter of Intent with guidance: http://www.telegraph.co.uk/news/health/news/10084492/Dying-mother-leaves-20-point-plan-for-happiness-for-her-family.html
- Letters written to child to be given at certain life moments, a series of Letters of Intent: http://metro.co.uk/2015/07/23/mum-terminally-ill-with-cancer-writes-letters-to-her-four-year-old-to-last-a-lifetime-5308613/
What will be most helpful to your guardian? What information will help your child the most? The links to the different letters could be used to guide you in adapting such letters to specific situations, such as pets.
Send any questions to firstname.lastname@example.org
If you have started the process of planning for the future of your loved ones if something should happen to you, then congratulations, you have taken responsible steps that many people—estate planning attorneys included—have avoided taking. You are probably thinking most about who would care for your children, even pets, if you can’t. So, you decide on a guardian, or caregiver for your pets, and hopefully two successors. You name them in your will. Don’t stop there.
Do your guardian or caregiver, and especially your children or pets, the favor of easing their transition to this new life without you by completing a “letter of intent,” or caregiver guide. A “letter of intent” gives information and details to your guardian or caregiver about everything from daily routines to hopes for the future. Everything from food likes and dislikes, doctor names and extracurricular activities, to hopes for education, thoughts on values and religion.
“Letters of intent” for pets (sometimes called Caregiver Guides) detail health history, food preferences, and allergies. Explain how the pet lived (crated at night or not? Walked on a leash or more accustomed to fenced-in yard?), thoughts on parameters with euthanasia, and other aspects of the pet’s life.
The most important subject for a “letter of intent,” however, might be a child with special needs. For many children with special needs, routine and familiarity are critical. Children on the autism spectrum can struggle with the most minor change (a subjective term) in their day or routine. Replicating a child’s routine as much as possible might reduce stress for a child with disabilities in adjusting to a different house, different people, different sounds and surroundings. A “letter of intent” would give a guardian a greater ability to provide the things necessary to help the child cope, particularly by continuing the child’s daily routine.
If you have any questions about preparing your own letter of intent for the care of your loved ones, email me at email@example.com.
It is difficult enough thinking of dying, but trying to imagine someone else raising your children makes the thought even more difficult. Every responsible parent needs to confront this difficult issue.
If you and your spouse (or the child’s other parent) died in a simultaneous manner, where would your children go? If you do not have a will that nominates a guardian, the court will decide. Do you want to let a judge who does not know you or your family, make this important decision? For most people I know, that answer is “no.”
The most important step you should take is nominating a guardian for your children, and preferably two alternates, in a will. Why is this important? Your nomination will:
- reduce the delay in appointing a guardian because the court will not have to consider factors and then make the decision;
- reduce the potential for family disagreement among those seeking guardianship if no one is named, and spare the children of dealing with family discord;
- provide for a smoother transition for children and family who are grieving;
- avoid appointment by the court of people you believe are undesirable in raising your children.
Letting your children know who you have named might ease anxiety in situations where a parent is faced with a terminal illness or other medical conditions that might cause them to fear their future (where will we live? Who will take care of us?) should a parent die. I’ve seen children struggle with these worries more than usual with parents in the military, parents who travel frequently for work, or parents in high-risk professions such as first responders.
Death is a tough topic, but you must confront it if you have children. Parenting involves making tough choices, including naming a guardian who’ll parent your children if you cannot.
Contact me at firstname.lastname@example.org if you want to discuss nominating guardians for your children.
Two days ago on March 22, 2017 the United States Supreme Court ruled unanimously in Endrew v. Douglas County that children with disabilities are entitled under the Individuals with Disabilities in Education Act (IDEA) to receive an educational program reasonably calculated to make meaningful progress. Why is this important? Because in more than half the country, the standard of only “some” or “minimal progress” was required. Therefore, this decision resolves conflicting federal circuit courts between those requiring only “some [or minimal] progress” (1st, 4th, 7th, 10th, and 11th circuits) versus other circuits requiring “meaningful progress” (3rd, 5th, and 6th circuits). Ohio, fortunately, has followed the “meaningful progress” standard (Ohio is among states in the 6th Circuit). This decision will have a larger impact on our western neighbor, Indiana, which employs the “minimal” or “some progress” standard, since Indiana is among states in the 7th Circuit.
This decision will have a profound impact on students with disabilities and their parents, schools, attorneys involved, and hearing officers. One can no longer show some or trivial progress—meaningful progress is now required. What does this mean? Students will no longer be advanced without making any progress. There must be meaningful progress, which is objective and data-driven. Data will be required to show progress, or lack thereof, rejecting primary reliance upon subjective reports from educators about whether progress is occurring. Data is objective and better suited to support either side’s argument, including when progress is actually happening to the objection by a parent.
What else does Endrew mean?
- In my opinion, Endrew spells out substantive obligations in the IDEA versus being merely a set of procedural requirements;
- Emphasis will be placed on parents and the school to develop an IEP that focuses on progress and advancement in the general curriculum, if the child is fully integrated in a regular classroom;
- Parents have complained that expectations for their child with special needs were set too low, too often. Now that the IDEA has more substantive “teeth,” the child must have the chance to meet challenging objectives;
- In my opinion (again), the burden of proof is now on the school for proving the sufficiency of an IEP;
- The Court has set a clear and workable standard now for lower courts to apply, ending various applications employed by various circuits.
Contact me at email@example.com with special education questions.
A child or adult with a disability can now save money without jeopardizing means-tested benefits with Ohio’s STABLE account.
“ABLE” accounts permit an individual with a disability to save money without having the savings jeopardize certain benefits such as Medicaid and Supplemental Security Income (SSI). Historically, to receive Medicaid, SSI, and other benefits, you had to have a very minimal amount of savings, typically $1500-2,000. Now, an eligible person with a disability can save money without worrying about losing these necessary benefits. Ohio’s version of this special savings account is called a STABLE account.
STABLE account specifics:
- STABLE accounts permit you to deposit up to $14,000 a year into an account that you choose from accounts with varying investment options.
- To be eligible for opening a STABLE account, the person with a disability had to have onset of the disability prior to age 26.
- Additionally, the person must be either entitled to SSI, or entitled to Social Security Disability Insurance (SSDI), or have a condition listed on the Social Security Administration’s “List of Compassionate Allowances Conditions,” or can self-certify (see website for requirements to self-certify).
- You do not need to reside in Ohio to open a STABLE account—enrollment is open to eligible people nationwide.
- A person with a disability can open their own account. A parent, legal guardian, or agent in a power of attorney authorizing actions with STABLE accounts can also open an account for an eligible person.
Contact me at firstname.lastname@example.org with any questions.