Planning to care for your Children and Young Adults
Having a Will simply does not protect those you love when the unthinkable happens.
If you are a parent of children or young adults who are counting on you, your future planning must begin with ensuring your children, no matter how old, will always be taken care of by the people you want, in the way you want, no matter what happens.
I am the single parent of a young adult and a teen-ager. If something were to happen to me while my teen is with me, law-enforcement authorities would immediately look for a legal guardian for her. I have named my ex-spouse as well as several friends who could come rescue her in case of an emergency. Without those nominations, my daughter, who is 16 would be placed in a juvenile detention facility until her father could be found simply because there aren't enough foster families to care for teens In New Mexico. Nothing could be more terrifying to a child than seeing a parent injured in an accident and then to be taken in by strangers or held in a jail-like setting.
In the case of my son, who is now away at college, if he were to become incapacitated, both his father and I are able to speak to medical professionals caring for him because he completed his legal documents nominating us. Unfortunately, without those nominations, parents often must hire local attorneys and suffer the cost of a legal proceeding to get named as guardians, while their child is sitting in a hospital bed, incapacitated. It is difficult for a parent to understand that just because their child turned 18, those 'mama bear' instincts to represent your child will now be ignored - even in an emergency room setting. See Health Insurance Portability and Accountability Act, 40 CFR Section 164.510(b)(1)(i).
And what about the long term care of my kids if something happens to me?
Unfortunately during a time when 60% of marriages end in divorce, the following scenario is all too common: You are a single parent of two young kids. You work hard . You have a house, a car, an IRA and even have paid for a life insurance policy. But you have no estate planning documents - or maybe you have drafted a simple will saying that you want your sister to be your executor or Personal Representative. And although you baptized your kids and named 'godparents' you haven't legally named anyone to care for your kids if you can not.
But then you die. What happens to that life you so carefully built?
1. Your House, IRA and life insurance policy for the benefit of your kids would go to your estate because they are minors;
2. Someone in your family (hopefully your sister) would have to apply to the court to be a Personal Representative - and since this is a public process, your Ex would have the right to learn all about your finances and your private life.
3. Your Ex would be able to oppose the court naming your sister as Executor;
4. Your parents, his parents or any family member could petition the court to become legal guardians, while the kids sit in Foster care or Juvenile detention (depending on their ages) waiting the a court hearing;
5. The court, who has no idea of how you raised your kids, would have to dictate who gets to see the kids and how to pay for their education, medical needs and general needs. This could mean limiting your family from seeing and helping to raise your kids if that is opposed by your ex.
6. Because the courts will generally defer to the parent of a child to care for them, he may also get (read take) all your funds to spend with very little court oversight.
7. When your child turns 18, he or she is supposed to get whatever is left - with no strings attached and no requirement that it be spent for education or in a way that would support that child.
Think about it. Your ex-spouse and his girlfriend with loose morals, that former mother-in-law, or crazy cousin Sue may get all your money and all the responsibility over your kids!
Estate Planning is more than just giving your assets away, it is being a responsible parent and providing for your kids - even when you cant be there to
PROTECT THOSE YOU LOVE.
Without advance legal planning for the care of your minor children or your young adults, if the unthinkable happens to you, or them, here's what would happen:
Your minor children could be removed from your home and placed into the care of the NMCYFD - a temporary foster home for young kids and actual juvenile detention for older kids needing temporary placement;
Your young adult could be incapacitated and hospitalized without your knowledge or ability to speak on their behalf;
Your children could be permanently put into the custody and care of someone you would never want, like that one family member who has good intentions, but you’d never want raising your kids.
A judge who doesn’t know you, or your family, will decide who will raise your kids and who will manage your assets, even if it’s the last person you would ever want;
Without pre-planning by you, the family could end up in the probate process that can tie up your assets and deprive your kids of the resources they need to live comfortably;
When your kids turn 18, without the proper planning, they could get a check for whatever assets are left - completely unsupervised;
In reality, we all spend more time vetting a babysitter before we go out on a date than we do thinking about actually writing down things like who would care for our kids if something happens to us. Estate Planning isn't something parents like to thinks about - but when you have young kids is probably the most important time to do it. Give yourself the peace of mind that if something happens to you, that your minor child will not end up in Foster care. And when your child goes off to college, make sure they continue to be able to have you support them in making the best medical, financial and legal decisions for them if they get themselves in trouble. Call us at 505-808-0234 today for a free consult to protect those you love!