Miguel, a nurse, and Sara, a doctor, are parents of three minor children. They are both employed by a local hospital, and both work in the emergency room. As frontline workers in a pandemic, COVID-19 has made them face fears that most parents consider their worst nightmare, leaving their children without parents. They are meeting with an estate planner to discuss their options. Sara verbalizes her fears that either or both of them could get COVID and be unable to care for their children for months as they recover. She also expresses her fear that COVID may take one or both of their lives, and they have not planned for the physical and financial care of their children if this should occur.
The grandparents will step in as guardians
Miguel’s mother and father are in their 50s and have agreed to step in as guardians for the children if necessary. Miguel and Sara have a last will and testament, which names Miguel’s parents as their children’s guardians in the event of their death, but what they have not considered was how to plan for their children’s care if they were incapacitated or temporarily unable to care for the children.
If one parent is unable, the other parent will, of course, continue to care for the children, but what if both parents are incapacitated? A guardianship power of attorney allows them to appoint someone else, such as Miguel’s parents, to assume the role and power as parents of these minor children in their absence.
The guardianship power of attorney can be as limited or as broad as you would like in terms of decision-making capabilities. A guardianship power of attorney can even be used if you cannot directly care for your children, such as while traveling. State laws vary on how to name a guardianship power of attorney, but an estate attorney can help you ensure legal plans are in place if you need someone to assume care of your children.
A revocable living trust
Miguel’s parents have been planning to retire in the next five to ten years. Miguel and Sara make considerably more money than his parents and have invested their money thoughtfully. How can Miguel and Sara ensure his parents can access their savings to care for their children?
Again, their last will and testament names Miguel’s parents as the children’s guardians in the event of their death. However, Miguel and Sara are interested in their options for planning for their children’s financial needs in the event they cannot due to illness or death. A revocable living trust enables Miguel and Sara to transfer their assets such as real estate, bank accounts, and investments to the trust. By naming themselves as the trustees, they retain control over how the assets are used. The legal ownership of the assets is transferred from Miguel and Sara to their trust. By naming Miguel’s parents as the alternate trustees, Miguel and Sara ensure his parents have access to the trust assets to take care of the children.
A revocable living trust has the following benefits. Miguel and Sara can:
- Specify how the funds will be used to take care of their children.
- Provide instructions on how to pay expenses when they are unable to do so.
- Detail how the assets will be used and distributed upon their deaths.
- Allow the trust money to be used to pay for life goals for the children such as an education or wedding.
- Leave all decision-making power on how to use the assets to Miguel’s parents.
- Ensure that his parents can avoid probate of their estate.
A revocable living trust is created during your lifetime, and you can cancel or change it at any time. As a trustee, you make all decisions on how the assets will be used and distributed. The laws governing how the trust is structured vary by state. You may also have questions about how well these assets are protected from creditors and how taxes are handled. An estate attorney can help you with these critical questions.
Like Miguel and Sara, you may not have thought about how your minor children will be cared for if you cannot do so. Most of us do not want to think about this potential reality, but we want our children cared for and protected if it should occur. In an uncertain world, an estate attorney can help answer your questions and provide you with options that best meet your needs.