Estate Planning for Young Families
Jesse Bifulco, Attorney, Camden Maine
Estate Planning for Young Families in Maine
The concerns of younger parents with minor children are different than those of grandparents. However, their concerns are the same: to prevent emotional trauma and economic loss or hardship due to a sudden unexpected life event.
If you’re a parent of a minor child Do you need a will?
Why should younger couples have an estate plan?
Younger couples should have an estate plan to avoid the possibility of incapacity or a sudden unexpected loss of their ability to care for their own children. With many important decisions we make, we must balance the cost of insuring against a risk versus the chance the risk will happen. In the case of the Basic Estate Plan for Younger Couples, the cost of making an estate plan is minimal. But, if the risk comes to pass, the cost of not having a plan can be devastating. With a younger couple or a parent of a minor child, if a sudden unexpected event causes incapacity or loss, the family can also be subjected to the costs of time and court interaction. Without a plan, the family will experience overwhelming frustration at being prevented from doing what they would have chosen to do, had they put their intentions in the form of an estate plan. The added costs are measured in money and family trauma.
Many younger couples hesitate to make a plan because they do not understand the scope of being disabled and “invisible” disabilities. Suffering from depression, a traumatic brain injury, PTSD, dementia are considered being disabled. It is common for people to suffer several health setbacks and recoveries during their lifetimes.
We often encapsulate the value of estate planning with two words and a phrase: plan protect, peace of mind. This is true of our senior clients as well as our younger clients and parents with minor children.
Why might a younger couple have a will?
When my first child was born, I sold my motorcycle and bought health insurance. I also made a will that nominated a guardian for my infant and appointed my spouse and also a successor healthcare agent. As a new parent it was important to me to know that if I became mentally incapacitated, or was permanently vegetative, someone could act in my behalf. As an attorney who has had to go to court on behalf of people in this condition – or rather the loved one who has had to deal with this new unexpected condition, I didn’t want to subject my own family to that kind of pain. Of course, it is unlikely to happen. But with so little time and effort needed to make the basic estate plan documents every younger family needs, I couldn’t justify not having a Healthcare Proxy, a Will and a Power of Attorney.
Here is a list of the estate plan documents
every parent of minor children should have:
- An Advance Directive for Health Care
Every parent of a minor child should have an Advance Directive for Healthcare. This document is a bundle of authorities and instructions that cover the possibility of being unable to make your wishes known to a healthcare provider. The Advance Directive includes a Power of Attorney for Healthcare (what some states call a Healthcare Proxy), a Living Will. It can also include specific instructions about “pulling the plug”, organ donation and preferences about what you’d like to see happen with your last remains.
- A Last Will and Testament that nominates a guardian for their minor child
Every parent of a minor child should nominate a guardian and conservator for their minor child if they die or become mentally incapacitated. If you don’t give your two cents about this, in writing, the Court will have no idea who you would choose to raise your children if you couldn’t be there to do it. The guardian has authority over the person, and the conservator has authority over their money and property. They don’t have to be the same person. Also, parents of a minor child should have a will that contains a standby supplemental or special needs trust. A standby trust covers the possibility that a beneficiary inheriting the property might be disabled themselves. It allows for that property to be in a trust for their benefit in a way that won’t make them ineligible for government benefits. Those are the basics. However, many parents choose to create a trust within their will, or a testamentary trust, to govern control of their children’s money. Without such a minor’s trust, at the age of 18, the child gains control over their finances. This may not be appropriate. Some parents nominate a trustee to control the finances of a child until an age above 18 – perhaps 23 or 25. With larger estates, some parents have lifetime trust provisions for their children to protect from creditors and predatory opportunists who might look to take advantage of their children.
- A Durable Power of Attorney.
Every parent of a minor child should have a Power of Attorney. A Power of Attorney is a legal document that allows you to appoint another to make legal and financial decisions on your behalf. If you can’t act, and you have a spouse or close relative taking care of your minor child, they may also need to access your financial accounts, or commence a lawsuit in your behalf. A Power of Attorney does not give the agent the power to make medical decisions. An Advanced Directive will have a Healthcare Power of Attorney within it. A Power of Attorney also ends at death. So it cannot be a substitute for a will or a trust.
- Revocable Living Trusts.
Parents with minor children who own their own business or who have a moderately complicated estate should seriously consider a Revocable Living Trust. A Revocable Living Trust is an excellent means to allow management of your complicated set of investments, including an active business, by the people you choose during a period of incapacity.
- HIPAA Concerns
While the Medical Power of Attorney and Advance Directive should help ensure your medical wishes are known and followed, they do not necessarily help with family harmony. Family members might not agree about the level of care you should receive.
One way to help clients try to keep everyone happy is through a HIPAA release – a document that gives no one decision-making authority but lets everyone participate in the conversation.
- Medical Power of Attorney
Medical decisions are personal and often based on emotional or spiritual values. This is one of the main reasons so many families fight over medical decisions. While people often believe their family members will not fight over their medical care, it is common to hear about court battles where families disagree over the right course of medical action for their loved one.
The reason to have the basic estate planning documents is simple: they are relatively inexpensive, and yet they are invaluable if you actually need them. Also, when you need them it is usually too late to make them. At Penbay Estate Planning Law Center, our concept is called LifeCounsel. Our estate planning documents and plans for young couples and parents with minor children are deliberately reasonably priced. We offer this service for several reasons. One reason is, that we want to be your family’s estate planning counsel. So with an inexpensive introduction, we can start a relationship.
We also want to try and help our clients avoid the avoidable problems in life. If we can serve our client’s needs throughout the different phases of their lives, both they and we can prosper, and avoid unnecessary cost and trauma. LifeCounsel is our plan to stay in touch with our clients. Once we’re introduced, whether that introduction is an estate plan for younger families, or an asset protection plan for an older couple, or the formation of a new business, it is our goal to keep you informed of potential problems that can arise. We also want to continuously update your estate plan as your life changes.